# Petition for Writ of Certiorari — Frank v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 1114

## Text

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952006 JUN 1 3 19%

OFEIQE OF THE CLERK
No. 95-

)

IN THE

Supreme Court of the United States
OCTOBER TERM, 1995

SAMUEL FRANK, Sheriff, Orange County, Vermont,

Petitioner,
Vv.

UNITED STATES OF AMERICA,
Respondent.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

* JAMES H. WARNER
11250 Waples Mill Road
Fairfax, Virginia 22030
(703) 267-1256

Attorney for Petitioner

* Counsel of Record

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. # 1-800-347-8208

i
QUESTION PRESENTED

Whether the delegated powers of Congress, as construed
in New York v. United States, 505 U.S. 144 (1992), include the
power which Congress exercised in the Brady Law, 18 U.S.C.
§922(s)(2), (6)(B) and (C), to prescribe duties for state Chief
Law Enforcement Officers (CLEOs), beyond those duties
prescribed in the state laws which created their positions,
including compelling the CLEO to make a reasonable effort to
ascertain whether individuals may lawfully purchase handguns;
thereafter to destroy the records of such transaction, or to
provide a written explanation for an adverse determination.

ii
PARTIES TO THE PROCEEDING

The parties to the proceeding below were Sheriff
Samuel Frank and the United States of America. No parent
companies and wholly or non-wholly owned subsidiaries of
either exist.

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Petectens teen lt it timate

iii

TABLE OF CONTENTS

Page
I et ee a es oueeeue i
I sr Fe ii
a oe ant iii
IR CS go a OR iv
a oe on 6 a watlna deewabewacwes ses l
NERS S 0 eae ee |

Statutes And Constitutional Provisions
ES TESTS AGES SSS a ie ae ne ee ee ]
es Ss as vb'a'y ow biwe wcien 3
Reasons For Granting The Writ ..................... 7

I. THE WRIT SHOULD BE GRANTED
BECAUSE THERE IS A CONFLICT OF
OPINION IN THE CIRCUITS ON THE
CONSTITUTIONALITY OF AN ACT OF
PNG caves Sbugek Cubes 66s us 7

Il. THE WRIT SHOULD BE GRANTED
BECAUSE THE DECISION OF THE
SECOND CIRCUIT IS IN CONFLICT
WITH THE DECISION OF THIS COURT
IN NEW YORK V. UNITED STATES .... 8

NPIS "Gf Or a ap Ra ing oy Ra A eee 16

Appendix:
Opinion of the U.S. Court of Appeals
rn es ron one b det wn la

iv

Opinion of the U.S. District Court
for the District of Vermont.................. 44a

Brady Handgun Violence Protection
Act, Pub. L. 103-159; 107 Stat. 1536

CPS oc cocccuvcul sbavensbaberbals secede 78a
AUTHORITIES CITED
Cases
FERC v. Mississippi, 456 U.S. 742 (1982) ........ passim
Federal Trade Commission v. Flotill Products, 389
SS. FRC). wh es eersincieb tiveness 7
Frank v. United States, 78 F.3d 815 a Cir. 1996) at
ee ONES ei eee err ebeeeneesy 1, 12, 13
Frank v. United States, 860 F. Supp. 1030 (D. Vermont
1994), rev'd 78 F.3d 815 (2d Cir. 1996) .............. l
Pep v. GE GE UE. FAS Gras ccc cccevevesesdenace G
Garcia v. San Antonio Metro. Transit Auth., 469 U.S.
Se ee Oa x taee ees anwneeewnen 9,12
Gregory v. Ashcroft, 111 S.Ct. 2395 (1991) .......... 13

Hodel v. Virginia Surface Mining & Reclam. Ass'n, Inc.,
Pett @ Fy eer erry | Perr: yee 9

Koog v. U.S., 79 F.3d 452 (Sth Cir. 1996) ........ 6, 7,8

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ees | Cee Or Ont Tee ame Ee eee

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Vv

McGee v. U.S., 79 F.3d 452 (Sth Cir. 1996) ......... 6,7

New York v. United States, 505 U.S. 144 (1992) ... . passim

Printz v. U.S., 66 F.3d (9th Cir. 1995) ................ 6
South Carolina v. Baker, 485 U.S. 505 (1988) ...... 9,12
Testa v. Katt, 330 U.S. 386 (1947) ................. 12

Waterman Steamship Corp. v. U.S., 381 U.S. 252, 258
GRO 2 Sa see er ee ae Cae ee a 7

Constitutional Provisions

a SA PERO hives nk vcceweccieksucudte 1 & e
se ee Rg rrr are rere mein shpat” 13
a CE ES es see baaec eee ee eee 12
Ek ee ee 8 Berar i ree or orrre er passim
Statutes and Rules
SO Ghdt Ace EE « beaks Siuueeuseeeneateiene 2

WUE MA ei eee 4,14

vi
28 UBS. S1ZSA) vc ccvensctivetvisevesvansene l
y BLE om Bs . | Spot ee rg te 5
Regulations

Attorney General Order No.1853-94, 59 Federal Register
9498 (Fab. 2B, 19OG) cic bss esivovesevtetesunss 4

Legislative History

H.R. Rep. No. 103-344, 103rd Cong., Ist Sess., at 7
10) #6 oSniiweskvews eee 14

l

Petitioner, Sheriff Samuel Frank requests that a writ of
certiorari issue to review the final order of the United States
Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals is
reported as Frank v. United States, 78 F.3d 815 (2nd Cir. 1996)
and is reproduced in the Appendix (“App.”) at la. The opinion
of the United States District Court is reported as Frank v.
United States, 860 F. Supp. 1030 (D. Vermont. 1994) and is
reproduced in the Appendix at 44a.

JURISDICTION

On March 15, 1996, the Court of Appeals affirmed in
part and reversed in part the judgment of the District Court,
thereby upholding the validity of the statutory provisions in
question. The jurisdiction of this Court is invoked pursuant to
28 U.S.C. §1254(1).

STATUTES AND CONSTITUTIONAL PROVISIONS
INVOLVED

Article I, §8 of the Constitution of the United States
provides:

Congress shall have the power ... to regulate
Commerce with foreign Nations, and among the several
States...

Amendment 10 to the Constitution of the Constitution
of the United States provides:

2

The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.

Pub. L. 103-159, 107 Stat. 1536 (1993), codified as 18
U.S.C. §§922(s), 924, 925A, is reproduced in full at App. 78a.
As codified, it provides in relevant part:

18 U.S.C. 922(s):

(1) .... it shall be unlawful for any ... licensed dealer to
sell, deliver, or transfer a handgun... unless....

(A) (i) the transferor has--

(1) received from the transferee a
statement of the transferee containing
the information described in paragraph

(III) within 1 day ... provided notice of
the contents of the statement to the chief
law enforcement officer of the place of
residence of the transferee...

(2) A chief law enforcement officer to whom a
transferor has provided notice pursuant to paragraph
(1)(A)G@)CID shall make a reasonable effort to ascertain
within 5 business days whether receipt or possession
would be in violation of the law, including research in
whatever State and local recordkeeping systems are
available and in a national system designated by the
Attorney General.

18 U.S.C. §924(5):

Whoever knowingly violates subsection (s) or (t) of
section 922 shall be fined not more than $1,000,
imprisoned for not more than | year, or both.".

ce Sen ee ot teeta

18 U.S.C. § 925A:

Any person denied a firearm pursuant to subsection (s)
or (t) of section 922--

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(2) who was not prohibited from receipt of a firearm ...
may bring an action against the State or political
subdivision responsible for ... denying the transfer ...
for an order directing that ... the transfer be approved...
In any action under this section, the court, in its
discretion, may allow the prevailing party a reasonable
attorney's fee as part of the costs.

STATEMENT OF THE CASE

Federal law prohibits the transfer of firearms to, or
possession by, members of certain classes of restricted persons,
including, inter alia, convicted felons, persons dishonorably
discharged from the armed forces, adjudicated mental
defectives, illegal aliens, unlawful drug users, fugitives from
justice, and persons under certain forms of domestic restraining
orders. 18 U.S.C. §922(d), (g), & (n).

In the past, purchasers were required to complete an
official questionnaire, on a form prescribed by the federal
government, verifying that they were not included in any of the
classes of restricted persons. In 1993 Congress enacted the
"Brady Law," Pub. L. 103-159, 107 Stat. 1536 (1993), which
provided for an official verification, through an examination of
available records, of the proposed purchaser's eligibility to
possess a firearm. To this end, the law requires the U.S. Justice
Department to establish a data base of prohibited persons by
the year 1999. Before that time, the law creates an interim
system which requires that the background investigations, on
persons seeking to purchase handguns, be conducted by the

4

"Chief Law Enforcement Officer" (CLEO) for the district in
which the proposed purchaser resides. The term "Chief Law
Enforcement Officer" is defined as ". . . the chief of police, the
sheriff, or an equivalent officer or the designee of any such
individual." 18 U.S.C. §922(s)(8).

During the operation of the interim system, the
proposed purchaser must fill out a form indicating an intent to
purchase a handgun. The dealer must submit this information
to the Chief Law Enforcement Officer of the place where the
proposed purchaser resides. 18 U.S.C. §922(s)(1)(A)(iii). The
CLEO is required to make ". . . a reasonable effort to ascertain
within 5 business days whether receipt or possession would be
in violation of the law, including research in whatever State and
local recordkeeping systems are available and in a national
system designated by the Attorney General." 18 U.S.C.
§922(s\(2). The U.S. Attorney General has designated two
Federal databases as the "national system" which the CLEO
must check. Order No.1853-94, at 59 Federal Register 9498
(Feb. 28, 1994).

If the CLEO finds that the proposed sale would not
violate Federal, State or local law, he is required to destroy the
form and any references to it within twenty business days. 18
U.S.C. §922(s)(6)(B). On the other hand, if the CLEO finds
that the proposed purchaser is ineligible to receive a handgun,
he must inform the dealer and, if the purchaser requests,
provide a written justification of his findings within 20
business days. 18 U.S.C. §922(s)(6)(C). Should the CLEO err
in barring a purchase, the statute creates a Federal cause of
action against his jurisdiction for correction and recovery of
attorneys’ fees. 18 U.S.C. §925A.

Sheriff Sam Frank is the elected Sheriff of Orange
County, Vermont. Orange County has a population of
approximately 26,000, and an area of 992 square miles. The

ae ee ed

5

County has three full time law enforcement officers, including
the Sheriff and two deputies. The Vermont legislature has
prescribed the duties of a sheriff at 24 Vermont Statutes
Annotated, Chap. 5, subchap. 5. These include a duty to serve
as bailiffs in courts in the county, transport prisoners, serve
legal process, as well as to serve as peace officers for the
county. Sheriff Frank, or his deputy, must spend from 15
minutes to six hours conducting background checks, and the
workload, with respect to background checks, has doubled
since the effective date of the Brady Law. App. 45a.

In May, 1993, Petitioner commenced an action in the
United States District Court, District of Vermont, invoking its
jurisdiction under 28 U.S.C. § 1331. He sought declaratory
relief to establish, inter alia, that 18 U.S.C. §922(s) exceeds
Congress’s Article I powers and violates the Tenth
Amendment. He also sought an injunction against its
enforcement.

The District Court (Parker, J.), relying upon this Court’s
decision in New York v. United States, 505 U.S. 144 (1992),
issued its decision, holding, in pertinent part, that those sections
of 18 U.S.C. §922(s) which impose ministerial duties upon
Chief Law Enforcement Officers is unconstitutional,
permanently enjoined the enforcement of same in the District
of Vermont, and upheld the remainder of the statute as
severable. App., at 44a.

The Court of Appeals reversed in part and affirmed in
part, the judgment of the District Court. The Court of Appeals
for the Second Circuit found that the duties imposed by the
Brady law do not, in fact, exceed the delegated powers of
Congress, or violate the 10th Amendment.

The question presented in this case has been reviewed
in other Circuits. The Ninth Circuit, in Mack v. U.S., and

6

Printz v. U.S. , 66 F.3d 1025 (9th Cir. 1995), held that the
duties which the Brady law compels CLEOs to perform did not
violate the 10th Amendment, or exceed the delegated powers
of Congress. On the other hand, in a decision issued 6 days
after the decision in the instant case, the Fifth Circuit, in Koog
v. U.S., and McGee v. U.S., 79 F.3d 452 (Sth Cir. 1996), held
that the interim duties, including the duty to perform a
background check, the destruction of records and the duty to
furnish written justification for denials, violate the constitution.

The Solicitor General, in the Brief of the United States,
in the Petition styled Printz v. United States, docket #95-1478,
which involves the question which is presented in the instant
case. concludes that this is a question which should be resolved
and that certiorari should be granted.

REASONS FOR GRANTING THE WRIT

I.
THE WRIT SHOULD BE GRANTED BECAUSE
THERE IS A CONFLICT OF OPINION
IN THE CIRCUITS ON THE CONSTITUTIONA® ITY
OF AN ACT OF CONGRESS

This Court should grant the writ of certiorari because
there is a conflict between the Circuit Courts on a question
which involves the delegated powers of Congress, under
Article I, section 8, ci.3 of the Constitution, and the reserved
powers of the States, under the 10th Amendment to the
Constitution. As noted, supra, the decision of the Second
Circuit in the instant case, the decision of the Ninth Circuit, in
Mack and Printz, supra, are precisely contrary to the decision
in the Fifth Circuit, in Koog and McGee, supra. Further, the
decisions of the Second and Ninth Circuits are not congruent
with the decision of this Court in New York v. United States,
505 U.S. 144 (1992). In such case, it is appropriate for the
Supreme Court to grant certiorari to resolve the conflict.
Waterman Steamship Corp. v. U.S., 381 U.S. 252, 258 (1965);
Federal Trade Commission vy. Flotill Products, 389 U.S. 179

(1967).

Il
THE WRIT SHOULD BE GRANTED BECAUSE
THE DECISION OF THE SECOND CIRCUIT IS
IN CONFLICT WITH THE DECISION OF THIS
COURT IN NEW YORK V. UNITED STATES

A.

In an opinion on the same issue, with a contrary result,
the Court of Appeals for the Fifth Circuit, in Koog v. U.S., 79
F. 3d 452 (Sth Cir. 1996), held that the Brady Law, to the
extent that it compels Chief Law Enforcement Officers to
perform ministerial duties, is unconstitutional. The Fifth
Circuit based its decision on the decision of this Court in New
York v. U.S., 112 S. Ct. 2408 (1992), which, it said, was ". . .
central to the question before us." New York is also central to
this case.

In New York the issue was a challenge to the Low-Level
Radioactive Waste Amendments of 1985. This statute
provided several incentives to induce States to conform with
the directives of the federal government on the disposal of
nuclear wastes. The Act offered financial grants to States
which complied. It provided for federal pre-emption in
instances in which a State chose not to comply. This Court
found that these provisions were within the permissible powers
of Congress, and did not transgress the powers reserved under
the 10th Amendment.

The Act also provided that Siates could choose whether
to enact regulations, as prescribed by Congress, or take title to
the waste from the parties who generated it, and assume

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9

liability both for the disposal of such wastes, and for any
damages. This provision was found to lie outside of the
enumerated powers and to be inconsistent with the Tenth
Amendment.

In reaching this decision, this Court distinguished those
Tenth Amendment cases in which the issue was the authority
of Congress to subject state governments to generally
applicable laws. These cases include Garcia v. San Antonio
Metropolitan Transit Authority, 469 US.. 528 (1985)(Fair
Labor Standards Act); Fry v. U.S., 421 U.S. 542 (1975)(wage
stabilization), and South Carolina v. Baker, 485 U.S. 505
(1988)(tax exemption on the interest on municipal bonds). /d.,
at 2420. The Court found these cases inapposite since the
legislation at issue, in New York, was not applicable to private
parties. Instead the issue was ". . .the circumstances under
which Congress may use the States as implements of
regulation." Jd.

The Court began its analysis by observing that
"Congress may not simply commandeer the legislative
processes of the States by directly compelling them to enact
and enforce a federal regulatory program." /d., at 2420, citing
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452
U.S. 264, at 288 (1981).

Congress may, however, use a variety of means to
induce states to assist in regulatory programs. For example,
under the spending power, "Congress may attach conditions to
the receipt of federal funds." Jd. Or Congress may offer States
the choice of regulating in accordance with Congressional
wishes, or having State regulation pre-empted by federal
regulation. /d., at 2424.

In Hodel, and in Federal Energy Regulatory Comm'n v.
Mississippi, 456 U.S. 742 (1982) (FERC), there were

10

incentives offered to the States for undertaking certain
regulatory programs. There was also the option of federal pre-
emption if the States chose not to act. In neither case were the
States compelled to enact legislation, nor to promulgate
regulations. In fact, the court observed, ". . . this “ourt never
has sanctioned explicitly a federal command to the States to
promulgate and enforce laws and regulations." /d.

Such a command is not permissible because the power
of the national government operates directly upon the people,
not on the States.

In providing for a stronger central government,
therefore, the Framers explicitly chose a
Constitution that confers upon Congress the
power to regulate individuals, not States. As we
have seen, the Court has consistently respected
this choice. We have always understood that
even where Congress has the authority . . . to
pass laws requiring or prohibiting certain acts,
it lacks the power directly to compel the States
to require or prohibit those acts.

* *

The allocation of power contained in the
Commerce Clause, for example, authorizes
Congress to regulate interstate commerce
directly; it does not authorize Congress to
regulate state governments’ regulation of
interstate commerce. J/d., at 2423.

After explaining the principles to be applied in
construing the Tenth Amendment, the Court then addressed the
arguments of the Government in defense of the "take iitle"
provisions, and against the prohibition on such legislation.

err lt—“—S

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11

First, the Government argued that this prohibition can
be overcome if the federal interest is important enough. The
Court responded:

No matter how powerful the federal interest
involved, the Constitution simply does not give
Congress the authority to require the States to
regulate. The Constitution instead gives
Congress the authority to regulate matters
directly and to pre-empt contrary state
regulation. Where a federal interest is
sufficiently strong to cause Congress to
legislate, it must do so directly; it may not
conscript state governments as its agents. /d., at
2429.

The Government also argued that ". . . the Constitution
does, in some circumstances, permit federal directives to state
governments." The Court responded that "(v)arious cases are
cited for this proposition but none support it." /d.

The Brady law compels State officers (Chief Law
Enforcement Officers, or "CLEOs") to perform a background
investigation of potential handgun purchasers, then either to
destroy the records of the investigation if the result is negative,
or furnish, if requested, a written explanation if the potential
purchaser appears to be ineligible to possess a firearm. Like
the "take title" provisions in New York, the Brady Law is a
direct, and unavoidable command to state officials. Like the
“take title" provisions, it violates the Tenth Amendment and
exceeds the Commerce Clause powers.

B.

In the instant case, the Second Circuit began its analysis
with the observation that "(t)o help navigate safely through the
murky waters of Tenth Amendment doctrine, it is necessary to

12

dispel the notion that the federal government may never compel
action by state officials." Frank v. United States, 78 F.3d 815
(2nd Cir. 1996), at 825. This flatly ignores the New York
Court's response to the same assertion, viz., "(v)arious cases
are cited for this proposition but none support it." New York,
supra, at 2429.

The Court of Appeals attempts to support this
proposition with several examples of decisions in which
burdens appear to have been imposed upon States. There are
three which are central to its reasoning.

In Garcia v. San Antonio Metropolitan Transit
Authority, 469 US.. 528 (1985), the issue was the applicability
of the Federal Fair Labor Standards Act, a law of general
application, to a municipal transit authority. It is inapposite.
The Brady Law background check duties apply only to state
officials.

In South Carolina v. Baker, 485 U.S. 505 (1988), the
issue was the exemption, from federal income tax, of income
from municipal bonds. It is inapposite. First, there is a specific
constitutional grant of authority to Congress to "lay and collect
taxes." Art I, section 8, cl. 1. There is also a constitutional
grant of authority to "make all laws which shall be necessary
and proper for carrying into execution" the granted power.
U.S. Constitution, Art I, section 8, cl.18. There is no such
grant to give direct commands to state officials.

In Testa v. Katt, 330 U.S. 386 (1947), this Court held
that a State court is required to enforce federal law. It is
inapposite. The Constitution provides, that the "Constitution,
and the laws of the United States which shall be made in
pursuance thereof . . . shall be the supreme law of the land; and
the judges of every state shall be bound thereby." US.
Constitution, Article VI, cl. 2. There is no provision binding

a

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See ee ee

13

state executive or legislative branch officials to the commands
of Congress.

The Second Circuit also cites Gregory v. Ashcroft, 111
S. Ct. 2395 (1991). It is not clear, from the decision, what
principle this case was thought to support. In that case the
issue was the applicability of the federal Age Discrimination in
Employment Act to Missouri judges who were required, by the
State Constitution, to retire at age 70. The case is not only
inapposite, but may be taken to support the opposing view.
The right of the people to determine the qualifications of state
officials is an integral element of a republican government.
There is a Constitutional guarantee of a republican form of
government, U.S. Constitution, Art. IV, sect. 4. Federal
interference would violate the Tenth Amendment.

The Second Circuit does recognize a very narrow field
in which Congress cannot act:

Certain kinds of federal action are by their very
nature so intrusive as to violate the Tenth
Amendment regardless of how light a burden is
imposed on state officials. Coercive
commandeering to the States’ legislative
processes that effectively compels the States to
adopt a federal regulatory scheme is one
example. Frank, 78 F.3d 815 (2nd Cir. 1996),
at 826.

Under the structural limits test, the Court found the
Brady Law did not violate the Tenth Amendment because it
does not "direct the States to enact legislation or to promulgate
regulations." Further, it held that the background check did not
transgress the decision in New York, supra, because". . . the
Brady Act is an exercise of Congress's power to regulate
individuals." Jd., at $27.

14

While it is true that most provisions of the Brady Law
are of general application, the provisions relating to Chief Law
Enforcement Officers is only applicable to them in their
capacity as creatures of State law, and not as individuals.
Further, the Brady Law does "commandeer the legislative
process" by augmenting the duties which the legislature of the
State prescribes for CLEOs by adding duties which the
legislature has declined to prescribe.

The Second Circuit also discussed a subjective,
quantitative limits test. "Directives aimed solely at States have
been upheld if they do not place any particularly ‘onerous
burden’ on the State." /d., citing FERC, supra, 2142. The
Second Circuit found that the Brady Law does not impose such
an "onerous burden" on CLEOs. Counsel is unable to find
support for an "onerous burden" standard in the four corners of
New York. However, assuming, arguendo, that there is such a
lower threshold for those statutes which do not violate the
structural limits of the Tenth Amendment, the Brady Law does,
in fact, impose an onerous burden.

First, when Congress was considering the Brady Bill, it
rejected an amendment which would have forced the Federal
Bureau of Investigation to conduct the background checks.
H.R. Rep. No. 103-344, 103rd Cong., Ist Sess., at 7 (1993). If
the burden is too onerous for the F.B.I., with its financial,
material, and personnel resources, then it is, a fortiori, onerous
for a Sheriff with two full time deputies and 992 square miles
to patrol.

Further, the Brady Law, at 18 U.S.C. §925A, provides
for a federal cause of action in cases of erroneous
determinations of ineligibility. That is, it involuntarily imposes
liability upon Orange County, and the State of Vermont. If
exposure to unlimited money damages is not an "onerous
burden,” the Second Circuit does not explain why it is not. In

15

fact, the liability provision would appear to "commandeer the
legislative processes." It commits the financial resources of the
people of Orange County, and of Vermont, under conditions
over which the people have no control. It mandates liability
for compulsory actions which the people are not permitted to
prescribe, alter, or evade.

C.

There is a conflict in the Circuits on the question which
is presented in the instant case, a question regarding the
constitutionality of an act of Congress. The Solicitor General
agrees that certiorari should be granted on this question. The
Court of Appeals, for the Second Circuit, in the instant case,
has not followed the decision in New York. The Brady Law
violates the Tenth Amendment, and it exceeds the powers
granted Congress in the Commerce Clause.

16

CONCLUSION

This Court should grant a writ of certiorari to review the
judgment of the United States Court of Appeals for the Second
Circuit.

Respectfully Submitted, ze

* James H. Warner
11250 Waples Mill Road
Fairfax, Virginia 22030
(703)267-1256

*Counsel of Record

Attorney for Petitioner
Sheriff Samuel Frank

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APPENDIX

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78 F.3d 815

SAMUEL FRANK,
Plaintiff-Appellee-Cross-Appellant, v. UNITED

STATES OF AMERICA,
Defendant-Appellant-Cross-Appellee.

Docket Nos. 95-6019, 95-6023

UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

; 1996 U.S. App. LEXIS 4615

August 28, 1995, Argued

March 15, 1996, Decided

PRIOR HISTORY: [*1] Defendant, the United States,
appeals from a judgment of the United States District Court

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for the District of Vermont (Parker, C.J.) declaring that the
background check requirement for "chief law enforcement
officers" under the Brady Handgun Violence Prevention Act
of 1993 violates the Constitution and enjoining its
enforcement in Vermont. Plaintiff, Samuel Frank, sheriff of
Orange County, Vermont, cross-appeals from the district
court's determination that he has no standing to challenge the
statute's criminal penalty provisions under the Fifth
Amendment and that the background check requirement is
severable from the remainder of the Brady Act.

DISPOSITION: Affirmed, in part, and reversed, in part.

COUNSEL: MARK B. STERN, Washington, D.C. (Sean A.
Lev, Stephanie R. Marcus, Appellate Staff, Civil Division,
Department of Justice, Washington, D.C.; Frank W. Hunger,
Assistant Attorney General, Walter Dellinger, Assistant
Attorney General, Richard L. Shiffrin, Deputy Assistant
Attorney General, H. Jefferson Powell, Stuart M. Benjamin,
Office of Legal Counsel, Washington, D.C.; Charles R.
Tetzlaff, United States Attorney, Civil Division, Burlington,
Vermont, of counsel and on the brief), for Appellant United
[*2] States of America.

ANDREA L. GALLITANO, Barre, Vermont (David A.
Otterman, Otterman and Allen, Barre, Vermont, of counsel),
for Appellee Samuel Frank.

Randolph D. Moss, Washington, D.C. (Anthony G. Brown,
James S. Campbell, Wilmer, Cutler & Pickering,
Washington, D.C.; Dennis A. Henigan, Gail A. Robinson,
Center to Prevent Handgun Violence, Legal Action Project,
Washington, D.C., of counsel), filed a brief on behalf of
Handgun Control, Inc., Center to Prevent Handgun Violence,

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International Association of Chiefs of Police, Major Cities
Chiefs, National Organization of Black Law Enforcement
Executives, Fraternal Order of Police, National Association
of Police Organizations, National Troopers’ Coalition, Police
Executive Research Forum, and Federal Law Enforcement
Officers’ Association as Amici Curiae.

JUDGES: Before: CARDAMONE, MINER, and
CALABRESI Circuit Judges, Judge Miner concurs in a

separate opinion.
OPINIONBY: CARDAMONE
OPINION: CARDAMONE, Circuit Judge:

The United States appeals from a judgment entered August
2, 1994 in the United States District Court for the District of
Vermont (Parker, C.J.) declaring unconstitutional that
section of the Brady Handgun Violence Prevention Act [{*3]
of 1993 (Brady Act or Act) which requires background
checks of potential handgun buyers, Pub. L. No. 103-159, @
102(a)(1), 107 Stat. 1536, 1537-38 (1993) (codified at 18
U.S.C. @ 922(s)(2) (1994)). Plaintiff Samuel Frank, the
Sheriff of Orange County, Vermont, cross-appeals from the
district court's rulings that he lacked standing to challenge
the Brady Act on Fifth Amendment grounds and that the
background check provision is severable from the remainder
of the Act.

Sheriff Frank does not argue that Congress lacks the power
to regulate transactions involving handguns. Apart from
federalism concerns, the commerce power of the United
States is almost certainly broad enough to support such
regulation. See United States v. Lopez, 131 L. Ed. 2d 626,

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115 S. Ct. 1624, 1630 (1995) ("The proper test requires an
analysis of whether the regulated activity ‘substantially
affects’ interstate commerce."); Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241, 252, 258, 13 L. Ed. 2d 258.
85 S. Ct. 348 (1964) (although final version of Civil Rights
Act carried no congressional findings, burden on interstate
commerce permitted prohibition of racial discrimination by
motels); H.R. Rep. No. 90-1577, 90th Cong., 2d Sess.
(1968), reprinted [*4] in 1968 U.S.C.C.A.N. 4410, 4411
("The principal purpose of [the Gun Control Act] is to
strengthen Federal controls over interstate and foreign
commerce in firearms .. . ."); H.R. Rep. No. 103-344, 103d
Cong., Ist Sess. 9-10 (1993), reprinted in 1993 U.S.C.C.A.N.
1984, 1986-87 (background checks intended to effectuate
prohibitions contained in Gun Control Act).

The issue on this appeal, then, does not involve Congress’
ordinary power to regulate under the Commerce Clause; the
issue is whether the regulatory means chosen under the
Brady Act are valid or intrude impermissibly upon state
sovereignty. At the front where the enumerated powers
granted to Congress under the Constitution clash with those
powers reserved to the States by the Tenth Amendment,
there is no certain line of demarcation. But whatever line
there is, it is one to which we should hold strongly. The
powers reserved to the States must not be, like the Maginot
line, easily outflanked by the powers of the national
government. In our view, the background check provisions
of the Brady Act do not cross that line and trespass on those
rights reserved by the Tenth Amendment.

FACTS

A. The Brady Act

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Congress [*5] enacted the Brady Act in 1993 to address the
national epidemic of handgun violence and death. See H.R.
Rep. No. 103-344, 103d Cong., Ist Sess. 8 (1993), reprinted
in 1993 U.S.C.C.A.N. 1984, 1985. The Act amends title I of
the Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.
1213 (codified as amended at 18 U.S.C. @@ 921-930
(1994)), which regulates firearms dealers and prohibits the
transfer of firearms to specific categories of persons ranging
from felons and "fugitives from justice” to certain
non-citizens. See 18 U.S.C. @ 922(g). To put teeth into these
prohibitions by identifying unlawful gun transactions before
they occur, the Act imposes a background check system.

The Act operates in two phases. First, it requires the U.S.
Department of Justice to develop a national instant
background check system for firearms transfers, which is to
be operational by the year 1999. See @ 103(b), 107 Stat. at
1541; 18 U.S.C. @ 922(t) (permanent provision). This
instant check system requires no waiting period. See @
922(t)(1). Second, for gun purchases occurring before the
national system is active, the Act contains an interim
provision that imposes a five-day waiting [*6] period
during which a background check is to take place. @
922(s)(2). This provision does not apply in States that require
pre-purchase background checks, see @ 922(s)(1)(D), or
permits and pre-permit background checks for handgun
purchases, see @ 922(s)(1 (C).

It is this interim background check provision that is the
subject of the instant litigation. Such checks are to be
conducted by the "chief law enforcement officer" (CLEO) of
the proposed purchaser's place of residence, see @ 922(s)(2),
which the Act defines as "the chief of police, the sheriff, or

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an equivalent officer or the designee of any such individual."
@ 922(s)(8). Before transferring a handgun, a licensed
firearms dealer must obtain a statement from the purchaser
(transferee). @ 922(s)(1)(A)(i)(1). In practice, this means that
a person seeking to buy a handgun must fill out a form
prepared by the Bureau of Alcohol, Tobacco and Firearms
(Bureau). See 27 C.F.R. @ 178.102(a)(1) (1995)
(conditioning handgun transfers on receipt by the licensee of
a "statement of intent to obtain a handgun on Form
5300.35"). The dealer then transmits the form to the CLEO
of the transferee's place of residence. @ 922(s)(1)(A)(i)(IID);
[*7] 27 C.F.R. @ 178.102(a)(3).

After a CLEO receives a copy of such a statement from a
dealer, that official "shall make a reasonable effort to
ascertain within 5 business days whether receipt or
possession would be in violation of the law, including
research in whatever State and local recordkeeping systems
are available and in a national system designated by the
Attorney General." @ 922(s)(2). Two additional
requirements are imposed on CLEOs in connection with
these interim background checks. If the CLEO determines,
on the basis of the background check, that a proposed
transfer would be lawful, he or she must destroy the
transferee's statement and related records. @ 922(s)(6)(B)(i).
If, however, the CLEO determines that a proposed transfer
would be illegal, the CLEO must give written reasons if the
would-be gun buyer so requests. See @ 922(s)(6)(C).

Criminal penalties are provided: "Whoever knowingly
violates [the Brady Act interim or permanent provisions]
shall be fined . . ., imprisoned for not more than | year, or
both." 18 U.S.C. @ 924(a)(5). The applicability of these
penalties to CLEOs is in dispute in this litigation. However,

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the record does not suggest that Sheriff [*8] Frank or any
other potential CLEO has been prosecuted or threatened with
prosecution under this subsection. In a March 16, 1994
memorandum to the Attorney General, the Office of Legal
Counsel took the position that for a variety of reasons
prosecuting and applying the penalty provision to CLEOs
would be impractical and inconsistent with the statute's
language and aim.

B. Brady's Implementation in Orange County

The Bureau, which by delegation of the Secretary of the
Treasury is responsible for the implementation of the Gun
Control Act and the 1993 amendments, see 18 U.S.C. @ 926
(1994), interprets the term "CLEO" as broad enough to
encompass more than one law enforcement officer within
any given geographical area. On January 21, 1994, bef>re the
effective date of the Brady Act, it sent an "Open Letter to
State and Local Law Enforcement Officials" (Open Letter)
explaining the requirements of the Act and suggesting that
state and local officials in each locality work together to
decide which agency would perform the CLEO functions.
The Bureau now maintains a list of the responsible CLEOs in
the jurisdictions within States covered by the five-day
interim requirement of the [*9] Act and publishes changes
in CLEO status in the Federal Register. See, e.g., 59 Fed.
Reg. 37,532 (1994).

On January 1, 1994 Sheriff Frank, Commissioner A. James
Walton, Jr. of the Vermont Department of Public Safety, and
numerous other interested law enforcement officials attended
a meeting at Norwich University in Northfield, Vermont
organized by the Bureau and the Vermont Department of
Public Safety to discuss the Act's implementation. At the

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meeting, Commissioner Walton told local officials that the
State would be willing te appoint an officer of the State
Police to discharge the CLEO duties in any jurisdictions in
which local officials declined to do so. Sheriff Frank then
indicated that he would perform that function in Orange
County.

The Bureau subsequently placed the sheriff on its list as the
CLEO for Orange County and notified licensed firearms
dealers in Vermont of its action. Initially, the sheriff's office
performed the background check duties. After Sheriff Frank
instituted the present suit, the state safety commissioner
asked the Bureau to change the CLEO designation; the
Bureau notified the sheriff on June 29, 1994 that it would
now treat Lieutenant George [*10] C. Contois of the
Vermont State Police as the CLEO for Orange County
because the sheriff's position in the litigation indicated his
unwillingness to perform that function.

C. The Lawsuit

On May 10, 1994 Sheriff Frank commenced the instant
action in the District of Vermont against the United States.
The complaint sought a declaration that the background
check requirement is unconstitutional and requested a
preliminary and permanent injunction against its
enforcement. The papers filed alleged that the mandated
background check violates the Tenth Amendment by
impairing the performance of the sheriff's duties under state
law, that it violates the Fifth Amendment because it is
excessively vague, and that this provision is not severable
and the entire interim portion of the Brady Act is therefore
invalid. In response, the government contended plaintiff
lacked standing to litigate either of his claims because he

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voluntarily assumed the CLEO duties and because the
government's interpretation of the Act's criminal provisions
as inapplicable to CLEOs eliminateu any threat of
prosecution. The government also urged that the background
check requirement was a valid exercise of Congress’ [*11]
power and that it was, in any event, severable from the other
interim provisions.

Following a hearing, the district court ruled that Sheriff
Frank has standing to assert the Tenth Amendment because
officers of the Vermont State Police are not CLEOs under 18
U.S.C. @ 922(s)(8). See Frank v. United States, 860 F. Supp.
1030, 1037-39 (D. Vt. 1994). It ruled further that the
background check provision is barred by the Tenth
Amendment, but that the provision is severable from the
remainder of the Brady Act. Id. at 1043-44. The trial court
held, in addition, that Sheriff Frank lacks standing to
challenge the Act on due process grounds. Id. at 1036. From
this judgment the United States appeals, and Sheriff Frank

cross-appeals.

ANALYSIS

I Standing

We must first decide whether Sheriff Frank has standing to
challenge the Brady Act on Tenth Amendment grounds.
Article III of the Constitution imposes three requirements for
standing: plaintiff must have suffered an injury in fact,
concrete and particularized as to plaintiff, actual and not
hypothetical; the injury must be fairly traceable to
defendant's challenged conduct and not caused by the

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independent action of a third [*12] party; and the injury
must likely, not possibly, be redressable by a favorable
decision in the litigation. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130
(1992); Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d
556, 104 S. Ct. 3315 (1984); Golden Hill Paugussett Tribe of
Indians v. Weicker, 39 F.3d 51, 58 (2d Cir. 1994). These
constitutional requirements stem from separation of powers
principles. See Defenders of Wildlife, 504 U.S. at 559-60.
Standing also includes prudential limits, see, e.g., Golden
Hill, 39 F.3d at 58, which not being here implicated are not
addressed.

A. Statutory Argument

The issue of standing in the case at hand is, in the first
instance, one of statutory construction. The question is
whether the term "chief law enforcement officer" used in @
922(s)(2) of the Act includes state as well as local officers. If
so, the government points out, Sheriff Frank's assumption of
the CLEO duties in Orange County was voluntary because
the Vermont State Police had said it would discharge the
duties in any jurisdictions in which local law enforcement
agencies did not want to act. If the government is correct and
Sheriff Frank's injury is self-inflicted, he lacks [*13]
standing for Article III purposes. See Diamond v. Charles,
476 U.S. 54, 70, 90 L. Ed. 2d 48, 106 S. Ct. 1697 (1986)
(assessment for attorney's fees resulted from litigant's
intervention and could not fairly be traced to statute whose
constitutionality was at issue); Simon v. Eastern Ky. Welfare
Rights Org., 426 U.S. 26, 41, 48 L. Ed. 2d 450, 96 S. Ct.
1917 (1976) (injury at the hands of a non-party is
insufficient); Petro-Chem Processing, Inc. v. EPA, 275 U.S.
App. D.C. 232, 866 F.2d 433, 438 (D.C. Cir.) (potential

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liability incurred voluntarily cannot fairly be traced to
challenged conduct of defendant), cert. denied, 490 U.S.
1106 (1989).

Plaintiff insists the Act does not permit state officials to be
CLEOs. Had Congress meant CLEO to include only local
law enforcement officials, then the state safety
commissioner's offer to perform the background checks
would have had no effect on Sheriff Frank's duties as the
CLEO of Orange County and plaintiff's statutory argument
would carry the day. We are unable to adopt plaintiff's
restrictive understanding of CLEO.

To begin, by defining CLEO as "the chief of police, the
sheriff, or an equivalent officer or the designee of any such
individual,” 18 U.S.C. @ 922(s)(8), Congress did not
expressly exclude state officials [*14] from performing
background checks. Although, as plaintiff points out,
Congress knew how to say "State" when it wanted to, see,
e.g., @ 922(t)(6) (limiting liability for employees "of the
Federal Government or of any State or local government"), it
also knew how to say "local" when that is what it meant, see
id., and it said neither in the definition of CLEO. Instead, it
used the more adjustable term "equivalent officer."

Further, the structure of the Brady Act does not support an
interpretation of CLEO restricted to local officers. A broader
construction of the term is consistent with the flexible
background check responsibility: CLEOs are required only to
"make a reasonable effort to ascertain" the legality of a
proposed transfer. @ 922(s)(2). To make the waiting period
and background check effective as an interim measure, the
words "or equivalent officer” were used by Congress to
reflect the reality that background checks can be performed

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best in different locales by different agencies. The legislature
explicitly recognized the vast differences between different
local areas by exempting altogether certain
sparsely-populated areas from the requirement, see @
922(s)(1)(F); [*15] it also accomplished this by using the
inclusive term "equivalent officer” within the definition of
CLEO. Hence, the Vermont State Police, whose powers over
criminal matters are identical to sheriffs’ under Vermont law,
see Vt. Stat. Ann. tit. 20, @ 1914 (1987), fall within the
definition of CLEO.

Moreover, to the extent the statute is ambiguous, we defer
to the Bureau's reasonable interpretation of the term because
it is the agency charged with administering the Gun Control
Act and the Brady Act. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, 467 U.S. 837, 843, 81 L. Ed. 2d
694, 104 S. Ct. 2778 (1983) (where statute silent or
ambiguous, the question is whether the agency's resolution
"is based on permissible construction of the statute").
Plaintiff asserts that deference is not warranted because
“equivalent officer” was not included in the definition of
CLEO to resolve conflicting policies. See Chevron, 467 U.S.
at 844. Although policy questions are quite clearly
implicated, we believe the essential question is not whether
there are conflicting policies, but "whether Congress has
directly spoken to the precise question at issue." Id. at 842.

It has not so spoken. Neither the Act's [*16] text nor its
legislative history contains a definition of "equivalent
officer," and the Bureau's Open Letter and its compilation of
the CLEQs in various jurisdictions, see, e.g., 59 Fed. Reg.
37,532 (1994), make plain that it views CLEO as including
state officials. Given the language and purpose of the Act,
the Bureau's construction is certainly a permissible one.

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Consequently, plaintiff's standing may not rest on the scope
of the term CLEO.

B. Administrative Burdens

Reading CLEO to include state officials along with local
officers does not end the standing inquiry. Although the Act
does not require plaintiff to serve as the CLEO of Orange
County, we think it inflicts sufficient injury to give him
standing. Because the Act envisions that more than one
official can qualify as CLEO in a given jurisdiction and
provides no formal mechanism for choosing among the
candidates, it therefore mandates at a minimum that the
relevant state and local law enforcement officials reach an
agreement as to which agency will serve as CLEO. See Roy
v. Kentucky State Police, 881 F. Supp. 290, 293 (W.D. Ky.
1995) ("Congress envisioned that law enforcement agencies
with an interest [*17] in and the ability to perform the
Brady Act requirements would meet and agree upon the
CLEO in each geographic area."). Indeed, the Bureau's Open
Letter so concluded. It suggested that state and local officials
work together to determine which agency would perform the
CLEO functions in each jurisdiction, which is why the
Bureau brought state and local law enforcement officials
together not only in Vermont, but throughout the country.

It is this administrative burden added to the sheriff's regular
workload that permits plaintiff to maintain his Tenth
Amendment challenge. Interference with the functions of a
local unit of government is an injury that may give a litigant
standing. Friends of the Earth v. Carey, 552 F.2d 25, 33 (2d
Cir.), cert. denied, 434 U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct.
296 (1977). It is familiar law that injury in the context of
standing is not limited to economic harm, see United States

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v. Students Challenging Regulatory Agency Procedures, 412
U.S. 669, 686, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973),
although a plaintiff seeking review must be among the
injured. See Sierra Club v. Morton, 405 U.S. 727, 734-40, 31
L. Ed. 2d 636, 92 S. Ct. 1361 (1972) (not enough to allege
government changes in national park would destroy scenery
and wildlife; to [*18] have standing plaintiff must allege
that its members use the park and are directly affected).

By making Sheriff Frank responsible -- even though only
concurrently with others -- for ensuring that some qualified
agency performs the background checks in Orange County,
the Act imposes administrative burdens beyond simply
reaching an agreement. To decide which of the potential
CLEOs will perform the tasks required by the Brady Act,
plaintiff and his counterparts must as a practical matter
undertake an analysis of their own internal procedures and
capabilities, consider the impact of background checks on
their budgets and on delivery of customary sheriff's services,
and work together to determine who may best conduct the
interim background checks. This imposition compels action
by state and local officials in a way that is alleged to violate
state sovereignty.

Additionally, the burden does not end with an initial
agreement on performing the checks. Plaintiff is excused

from the CLEO duties only for so long as the State Police are

willing to discharge them. And that willingness, for
budgetary, political, and logistical reasons, is always subject
to change. The CLEO duties therefore remain [*19] a
factor in the way the sheriff's office structures its operations.
These several burdens, we believe, impact sufficiently upon
Sheriff Frank to give him standing to maintain the present
action.

Se ee ee re eS

2. ee ee

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Our concurring colleague writes that the imposition of the
CLEO duties on Sheriff Frank is sheer speculation and that
the administrative burdens are insufficient to support
standing. First, although the possibility that the state will
withdraw its pledge to supply personnel is not certain to
occur, that possibility imposes a present burden on the sheriff
that is by no means speculative. The sheriff's office must
plan for the contingency even if it never materializes.
Moreover, the Act imposes another present burden on him
even if the state continues to volunteer: he must reach an
initial agreement and continue to agree with the state and
other potential CLEOs.

Second, although the administrative burdens may appear to
be a slender reed upon which to base standing, they are
sufficient for constitutional purposes. The burden of an
allegedly unconstitutional statute need not be crippling
before it may be challenged in court; plaintiff only need
allege "such a personal stake in the outcome of [*20] the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d
663, 82 S. Ct. 691 (1962). While the harm must be
"perceptible," Defenders of Wildlife, 504 U.S. at 566, it need
not be monumental. In the present case, the continuing
burden on Sheriff Frank meets this requirement and has led
to this sharply contested lawsuit. Therefore, the injury-in-fact
requirement has been met.

The government's argument that Sheriff Frank lacks
standing because he voluntarily assumed the CLEO duties is
based on the willingness of another state-created entity, with

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the approval of the Bureau, to perform the functions in his
stead. We do not adopt this reasoning because to do so would
grant to the government the power unilaterally to prevent the
resolution of a controversy by designating and replacing
CLEOs and thereby destroying standing. Ten days after the
instant action was commenced, Commissioner Walton
notified Sheriff Frank that the lawsuit indicated his desire to
discontinue the CLEO functions and that the Bureau was
being asked to designate (*21] the State Police as CLEO.
The Bureau assented to the change. A State may not consent
to a Tenth Amendment violation, New York v. United States,
505 U.S. 144, 182, 120 L. Ed. 2d 120, 112 S. Ct. 2408
£1992); nor should litigants be allowed to strategically
prevent controversies from being resolved, cf. City of
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 71 L.
Ed. 2d 152, 102 S. Ct. 1070 (1982) (a case is not moot where
a litigant abandons a challenged practice); United States v.
W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct.
894 (1953) ("voluntary cessation of allegedly illegal conduct
does not deprive the tribunal of power to hear and determine
the case"). Under the present circumstances, to accept the
contention that the sheriff now lacks standing would not
serve the purpose of identifying and resolving those disputes
most appropriately heard and decided by the federal courts,
see Defenders of Wildlife, 504 U.S. at 560; Whitmore v.
Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct.
1717 (1990).

Moreover, we have held that a local unit of government has
standing to challenge a federal requirement on Tenth
Amendment grounds despite the failure of the State -- the
creator of the local entity -- to join in the challenge. Friends
of the Earth, 552 F.2d at 33. The [*22] instant case raises
the same concerns -- the county sheriff should not be

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precluded from challenging the statute merely because the
State has supported the Brady Act and has pledged personnel
to carry out the background checks. The burden imposed on
Sheriff Frank by the Brady Act is sufficiently concrete,
actual, and particularized to constitute injury for
constitutional purposes. The injury is directly caused by the
challenged statutory provision, and would be eliminated
were the litigation resolved in Sheriff Frank's favor.

As our concurring colleague points out, the burden
imposed on New York City in Friends of the Earth was much
heavier than the one imposed on Sheriff Frank. Although the
burden of complying with an automobile pollution control
plan is concededly more severe than the administrative
requirements mandated by the Brady Act, Friends of the
Earth, like the present case, involved a | enth Amendment
challenge of a federal requirement by a local governmental
unit; the State in Friends of the Earth supported the federal
mandate and it was argued that the local government
therefore had no standing. Here, the State of Vermont has
supported the Brady Act and has [*23] agreed to perform
the interim background checks in certain jurisdictions.
Therefore, the principle that was dispositive in Friends of the
Earth -- that a state's failure to oppose a federal requirement
does not prevent a political subdivision from bringing a
federalism challenge -applies with equal force to the present
case. Plaintiff therefore has standing to chalienge the Act on
Tenth Amendment grounds.

Il Tenth Amendment

A. Federalism Principles and the Boundaries of
Congressional Power

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Having resolved the threshold question of standing, we pass
now to a discussion of the merits. The Tenth Amendment to
the United States Constitution states: "The powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people." Because the Tenth
Amendment simply states that all is kept that has not been
surrendered, see United States v. Darby, 312 U.S. 100, 124,
85 L. Ed. 609, 61 S. Ct. 451 (1941), the reach of the federal
government's power vis-a-vis the States may be analyzed as a
question of whether Congress has exceeded the bounds of its
delegated powers, or whether it has impermissibly trenched
upon state sovereignty. [*24] As observed by the Framers,
that power surrendered by the people is divided between two
governments that will control each other, giving rise to a
"double security" protecting the rights of the people. The
Federalist No. 51, at 263-64 (James Madison) (J.M. Dent &
Sons Ltd., 1961). The purpose of the division is to protect the
liberty of individual citizens from an excessive concentration
of power in a central government. See United States v.
Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624, 1626 (1995) (The
mandated division of authority "was adopted by the Framers
to ensure protection of our fundamental liberties." (internal
quotations omitted)); Gregory v. Ashcroft, 501 U.S. 452,
458, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991) (as the
separation of the branches of national government keeps each
in check, so a "balance of power between the States and the
Federal Government will reduce the risk of tyranny and
abuse from either front").

To help navigate safely through the murky waters of Tenth
Amendment doctrine, it is necessary to dispel the notion that
the federal government may never compel action by state
officials. This was stated to be the law over a century ago in

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Kentucky v. Dennison, 65 U.S. (24 How.) 66, 107, 16 L. Ed.
717 (1861): [*25] "The Federal Government, under the
Constitution, has no power to impose on a State officer, as
such, any duty whatever, and compel him to perform it."
Today, a view that the national and state governments are
coequal sovereigns in all circumstances does not fairly
represent the state of the law. See Federal Energy Regulatory
Comm'n v. Mississippi, 456 U.S. 742, 761, 72 L. Ed. 2d 532,
102 S. Ct. 2126 (1982) (FERC).

There are occasions when the federal government may
impose legal duties on state officers. For example, Congress
may require state regulatory authorities to implement
federally-promulgated rules requiring the adjudication of
disputes arising under a federal statute. See FERC, 456 U.S.
at 759-60. Instead of preempting an area of state regulatory
activity, Congress may require state authorities to consider
the enactment of federally-proposed standards, id. at 764.
Also, the national government may insist that States treat
their workers according to federally-imposed wage and
overtime standards. See Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528, 555-56, 83 L. Ed. 2d 1016, 105
S. Ct. 1005 (1985) (upholding minimum wage and overtime
requirements); Fry v. United States, 421 U.S. 542, 548, 44 L.
Ed. 2d 363, 95 S. Ct. 1792 (1975) (upholding wage
stabilization [*26] measures).

Certain kinds of federal action are by their very nature so
intrusive as to violate the Tenth Amendment regardiess of
how light a burden is imposed on state officials. Coercive
commandeering of the States’ legislative processes that
effectively compels the States to adopt a federal regulatory
program is one example. See Hodel v. Virginia Surface
Mining and Reclamation Ass'n, Inc., 452 U.S. 264, 288, 69

20a

L. Ed. 2d 1, 101 S. Ct. 2352 (1981). In New York v. United
States, 505 U.S. 144, 177, 120 L. Ed. 2d 120, 112 S. Ct.
2408 (1992), the Supreme Court held that the take title
provision in the Low-Level Radioactive Waste Policy
Amendments Act of 1985, which gave States the choice
between either taking title to and assuming legal
responsibility for waste generated within their borders, or
regulating such waste according to Congress’ instructions,
exceeded Congress’ power under the Constitution. It was the
coercive nature of the take title provision that violated the
constitutional plan, that is, Congress has no power to make
the States require or prohibit certain acts, even though
Congress itself may pass laws requiring or prohibiting those
same acts. Id. at 166. The take title provision also violated
the principle that officials, both [*27] state and federal,
must remain accountable to their constituents. Id. at 168.

Therefore, there is a clear prohibition against directing States
to legislate or to regulate because the structural nature of the
intrusion plainly strikes at the heart of state sovereignty and
violates the Constitution's careful allocation of power
between the federal and state governments. Apart from this
specific prohibition, the severity of the burden placed on
States is the touchstone for determining whether national
legislation is so onerous as to threaten the effectiveness of
the States in our federal system. In the case of a law of
general application, for instance, state sovereignty will
ordinarily be sufficiently protected by the States’
participation and influence in the national political process,
see Garcia, 469 U.S. at 554, so as not to warrant judicial
intervention to safeguard their interests. Directives aimed
solely at States have similarly been upheld if they do not
place “any particularly onerous burden on the State." FERC,
456 US. at 768.

2la

In determining whether Congress has transgressed either
the structural or the quantitative limits, the nature of the
federal requirement [*28] imposed on the States rather than
the subject matter of the regulation must be examined.
Rejecting, as impracticable, the four-part test for immunity
from federal regulation set forth in National League of Cities
v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465
(1976), the Supreme Court in Garcia, 469 U.S. at 548,
focused on preserving the role of the States in our federal
system. Thus, South Carolina v. Baker, 485 U.S. 505, 99 L.
Ed. 2d 592, 108 S. Ct. 1355 (1988), upheld a federal statute
that effectively required States to issue registered bonds, as
opposed to bearer bonds, if they chose to issue bonds at all.
South Carolina confirmed that the limits imposed by the
Tenth Amendment are "structural, not substantive." That is,
States must find protection from Congress’ intrusions via the
national political process, not by having courts define state
activities that may not be regulated. Id. at 512. New York
reaffirmed that Tenth Amendment analysis should focus on
the appropriate roles of the States and the federal government
rather than the subject matter of the regulation. See 505 U.S.
at 160-61.

B. Constitutionality of the Brady Act

With these principles in mind, we now address the
constitutionality [*29] of the provision requiring CLEOs to
“make a reasonable effort to ascertain . . . whether receipt or
possession [of a handgun] would be in violation of the law."
See 18 U.S.C. @ 922(s)(2). We do not think the background
check requirement of the Brady Act interim provisions
imposes a structural burden inconsistent with the plan
established by the Constitution; nor does it impose an

22a

onerous quantitative burden on state or local officials. We
address these issues in turn.

1. Brady Act Consistent with Structural Limits of Tenth
Amendment

We turn first to the formal limits imposed by the federal
structure of our Constitution. Sheriff Frank, relying primarily
on New York, urges that the interim background check
requirement is unconstitutional regardless of the quantitative
degree of the burden imposed. The Tenth Amendment does
impose structural restrictions on congressional action. But
unlike the statute at issue in New York, which attempted to
foist the responsibility for addressing the problems of
low-level radioactive waste upon the States, the Brady Act is
consistent with the constitutional scheme.

As already noted, we rejected at the outset plaintiff's
contention [*30] that Congress may never compel state
officials to perform duties and may only seek to guide States’
behavior by attaching conditions to federal funds, threatening
preemption, or passing generally-applicable legislation. New
York did not purport to revert to the 19th-century rule that
the federal government may never impose obligations on
state officers. Instead, that case involved a "unique" statute
that in its take title provision coerced state governments into
implementing federal law and therefore violated the Tenth
Amendment. 505 U.S. at 177. The Supreme Court reasoned
that the take title provision and its alternative pressed state
governments into federal regulatory service by offering
States the choice between regulating according to Congress’
instructions or themselves assuming liability for the waste.
Id. at 175. The offending take title provision violated Hodel's
edict that the national government cannot mobilize "the

23a

legislative processes of the States by directly compelling
them to enact and enforce a federal regulatory program.” 452
U.S. at 288.

The Brady Act does not direct the States to enact
legislation or to promulgate regulations. See Mack v. United
[*31] States, 66 F.3d 1025, 1031 (9th Cir. 1995). Rather, to
the extent that it implicates the States’ legislative processes at
all, it merely allows States to enact a background check or
permit system for handgun purchases as an alternative to
federally-required checks by CLEOs, see 18 U.S.C. @
922(s)(1)(C)-(D). But, such a state enactment is not
mandated or even significantly encouraged.

Sheriff Frank, further relying on New York, urges that the
Brady Act contravenes the Tenth Amendment because
Congress has "the power to regulate individuals, not States,”
New York, 505 U.S. at 166, and that "the Federal
Government may not compel the States to enact or
administer a federal regulatory program," id. at 188. The
background check requirement of the Act does not transgress
New York's holding. Unlike the statutory scheme established
in the Low-Level Radioactive Waste Policy Amendments
Act of 1985, designed to encourage States to reach their own
solutions, the Brady Act is an exercise of Congress's power
to regulate individuals. The thrust of the Act is to improve
the effectiveness of the laws governing handgun transfers
between individual citizens. To achieve this purpose, [*32]
the Act requires registered dealers and potential transferees
to supply information to law enforcement personnel when a
transaction is proposed, and it prohibits the consummation of
potential transactions found to be illegal. That the Brady Act
enlists state officials during the interim period, pending the
implementation of a national system for instant background

24a

checks, does not change the Act's basic character. Because
the Act neither requires States to enact regulations by
requiring them to fashion their own solutions, nor abdicates
political responsibility in the handgun control field, it is
distinguishable from the statutory provision found offensive
in New York.

Congress has authority to subject state governments to
generally applicable laws that govern the conduct of private
parties. Such laws are different from attempts by the national
government to direct or otherwise motivate the States to
regulate in a particular field in a particular way, that is to say,
it is permissible for Congress to require private citizens to act
in a certain manner and for the States to help administer such
a federal law, but Congress cannot require the States to pass
laws requiring their citizens [*33] to act in a certain
manner.

Congress is, according to New York, barred under the
Tenth Amendment from compelling state legislatures to
enact legislation because the federal government may not
commandeer the basic decisionmaking processes of state
government. This view is reinforced by the Supreme Court's
repeated reference to Hodel, which upheld provisions of the
Surface Mining Control and Reclamation Act of 1977
because that statute did not compel the States to enact and
enforce a federal regulatory program and thereby take over
the States’ legislative processes. Hodel, 452 U.S. at 288,
quoted in New York, 505 U.S. at 161, 162, 170, 176. The
offending provision in New York -- because it required
States to enact their own regulatory solution -- was the sort
of unconstitutional legislation alluded to in Hodel.

Moreover, the Framers contemplated and approved the

25a

administration by state officials of federal laws applicable to
individuals. Thus, Madison said collection of tax revenue for
national purposes "will generally be made by the officers . . .
appointed by the several States." The Federalist No. 45, at
237 (James Madison) (J.M. Dent & Sons Ltd., 1961). [*34]
Hamilton agreed: "The national legislature can make use of
the system of each State within that State. The method of
laying and collecting . . . taxes in each State can, in all its
parts, be adopted and employed by the federal government."
The Federalist No. 36, at 172 (Alexander Hamilton)
(emphasis in original). Mandates to local officials to enforce
federal as well as state laws -- as in the interim provisions of
the Brady Act -- do not encroach on state sovereignty in any
appreciable manner.

The absence of compelled regulation helps illuminate the
central reason that New York is not controlling: the roles of
the federal government and the States under the Brady Act
are consistent with the values underlying federalism. "Where
the Federal Government compels States to regulate, the
accountability of both state and federal officials is
diminished." New York, 505 U.S. at 168. Under an
arrangement like that in New York, "it may be state officials
who will bear the brunt of public disapproval, while the
federal officials who devised the regulatory program may
remain insulated from the electoral ramifications of their
decisions.” Id. at 169.

The Brady Act has no [*35] such effect on
accountability. First, the Act itself is a national,
comprehensive approach to identifying potential illicit
handgun transactions. Because it requires no additional
enactments by state governments, it poses little risk of
shifting the blame (or glory) for its provisions to local

26a

officials. Additionally, because the administration of the
interim provisions is vested in a federal agency -- the Bureau
of Alcohol, Tobacco and Firearms -- there is little danger of
confusion. For example, the Act instructs potential
transferees to fill out a Form 5300.35, clearly identified as a
federal form. See 27 C.F.R. @ 178.102(a)(1) (1995).

Second, political accountability would be jeopardized were
local officials able to invoke the Tenth Amendment to defeat
even the lightest and most insignificant federal mandate. Just
as Congress in New York attempted to shift responsibility to
state officials, federal officials could shift the blame for
inaction by attributing persistent national problems, such as
handgun violence, to the intransigence of local officials.
Even more problematic is the possibility that federal officials
could consistently surrender responsibility for national [*36]

problems by invoking abstract notions of "federalism,"
which would result in dissipation, as opposed to a mere
shifting, of political responsibility. Thus, the accountability
concerns discussed in New York support the validity of the
Brady Act.

Today's ruling serves the purposes of federalism in another
way. Returning to the 19th-century prohibition of any direct
mandate to state officers would lead Congress, when it acts,
to do so exclusively through federal instrumentalities. Rather
than promoting the "constitutionally mandated division of
authority” intended by the framers to protect individual
citizens’ liberties, Lopez, 115 S. Ct. at 1626, the perverse
result would be a further concentration of authority in the
federal government. Sheriff Frank has not asserted in this
litigation that Congress could not, by exercising its
commerce power, bypass local governments and employ
federal agents to check on citizens who wish to purchase

te tite —_— —- = Satin —

27a

firearms. Such action illustrates how direct federal
intervention could follow from the adoption of a simple "no
compulsion" rule. Federalism is too crucial, too centra! to our
system of government to be trivialized by a rule that would
make [*37] any co-optation of any state official into a
violation of the Constitution. The effect of such a rigid rule
would be the multiplication of direct federal bureaucratic
intervention and, hence, in practice, a greater reduction in
effective federalism.

In addition to being qualitatively different from
arrangements like the one invalidated in New York, the
duties imposed on CLEOs are more like those that have been
upheld in prior cases. Congress can require state courts to
entertain a federal claim despite a contrary state rule or
policy. See Testa v. Katt, 330 U.S. 386, 91 L. Ed. 967, 67 S.
Ct. 810 (1947). Although a state court may refuse to do so if
it has a “valid excuse," see Douglas v. New York, New
Haven & Hartford R.R. Co., 279 U.S. 377, 388, 73 L. Ed.
747, 49 S. Ct. 355 (1929), "an excuse that is inconsistent
with or violates federal law is not a valid excuse." Howlett v.
Rose, 496 U.S. 356, 371, 110 L. Ed. 2d 332, 110 S. Ct. 2430
(1990). This principle does not apply only to state courts;
Congress also may enlist state regulators to vindicate federal
rights. See FERC, 456 U.S. at 760 & 763 n.27 ("It is difficult
to perceive any fundamental distinction between the state
legislature's power to establish limits on the jurisdiction of
the state courts, [*38] and its prerogative to set ratemaking
criteria for use by quasi-legislative utilities commissions.").

CLEOs' duties under the Brady Act are not qualitatively
different from the congressionally-imposed functions upheld
in such cases as Testa and FERC. When a Form 5300.35 is
forwarded by a transferor, a CLEO is required to consult

28a

relevant records and issue a determination as t> whether the
transaction can be consummated. If the decision is favorable,
the five-day waiting period is truncated and the weapon may
be transferred. See 18 U.S.C. @ 922(s)(1)(A)(ii)(1I). The
same result obtains if the five-day period has elapsed without
notice from the CLEO. See @ 922(s)(1)(A)(ii)(1). If the
decision is not favorable, then the transaction has been
identified as illegal and may not take place. See @ 922(s)(1).
In the operation of the Brady Act, as in the circumstances of
FERC and Testa, the federal government has taken
responsibility for determining the applicable standards, and
state officials are being asked to apply those standards to a
particular situation. Although plaintiff attempts to dismiss
FERC and Testa as merely addressing "adjudicatory" bodies,
[*39] in so doing he fails to acknowledge the striking
similarity between the obligations imposed in those cases
and those imposed on CLEOs. The applicability of the Testa
principle depends upon the role performed by the state
officer, not the governmental branch involved. See FERC,
456 U.S. at 762 n.27. Thus, the proffered distinction is
irrelevant. Testa was distinguished in New York on the
grounds that the legislation in question in the latter case did
not regulate individuals and required States to engage in
legislation. 505 U.S. at 178-79. Unlike a statute that
commands state legislatures to legislate, the Brady Act
simply requires CLEOs to apply federal law in the regulation
of individuals and to perform a function similar to those
validated in FERC and Testa.

In sum, after Testa, Garcia, Gregory, and New York it is
now clear that Congress acts within its broad power to
regulate under the Commerce Clause when its legislation
neither obscures lines of political accountability nor disturbs
the ordinary presumed sovereignty of the States. This

29a

principle furthers federalism and strengthens its attendant
political safeguards -- the "double security" [*40] -- in our
constitutional system.

2. No Impermissibly Onerous Burden on States

Sheriff Frank contends, at least with respect to his standing
argument, that the duties imposed by the Brady Act are
burdensome. In an affidavit filed in support of a preliminary
injunction, he stated a typical background check included a
search of the National Crime Information Center that the
State Police in Bradford, Vermont performed at his request.
The National Crime Information Center provides criminal
background information that covers the entire country.
Preparing the request and transmitting it by facsimile took 15
minutes. The State Police would notify the Sheriff's office by
telephone of potential legal problems with a given transfer.
To obtain the National Crime Information Center's findings,
he reported, a deputy had to drive 30 minutes to the State
Police barracks and back. Deciphering the report often
demanded additional telephone calls. In his affidavit, Sheriff
Frank described a number of other sets of records that might
be relevant to the legality of handgun transactions. When he
testified before the district court, he indicated that a Brady
check "may take us anywhere from 15 [*41] minutes to --
well, we had one up to six hours."

We do not think the described burden is so significant
quantitatively that it rises to the levei of a constitutional!
violation. Courts should avoid construing a statute in a
manner that raises serious constitutional problems whenever
possible, unless such otherwise acceptable construction of a
statute is not plainly repugnant to Congress’ aim. This is true
generally, see, e.g., Edward J. DeBartolo Corp. v. Florida

30a

Gulf Coast Bldg. & Constr. Trades Councii, 485 U.S. 568,
575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988), and is
particularly true where a federal statute might be construed to
invade state sovereignty impermissibly, see Gregory v.
Ashcroft, 501 U.S. 452, 469-70, 115 L. Ed. 2d 410, 111 S.
Ct. 2395 (1991); Will v. Michigan Dep't of State Police, 491
U.S. 58, 65, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). In the
context of the Brady Act, this rule tips us toward construing
the background check requirement as imposing only a light
burden on CLEOs. Such a reading is consistent with the
tenor and language of the Act, which simply requires a
“reasonable effort" and directs that the background check
include searching state and local records only if they are
"available." See 18 U.S.C. @ 922(s)(2). The view that the
[*42] burden is a light one accords with the Bureau's
interpretation of the Act as expressed in its Open Letter,
which stated the Act requires "some minimal effort to check
commonly available records."

Because the relevant circumstances -- including the
availability of resources, access to records, frequency of
requests, and the likelihood that the CLEO will be personally
acquainted with the transferee -- will vary among different
localities, what is a “reasonable effort" depends upon the
jurisdiction. In some extreme situations, such as where an
emergency demands the immediate attention of the CLEO, a
"reasonable effort” might conceivably be no action at all. The
Brady Act's use of a highly subjective standard ensures that
state officials are not excessively burdened. Moreover, the
degree of inconvenience visited on the States is even smaller
in view of the flexible definition of CLEO, discussed above,
which allows agencies like Sheriff Frank's office to avoid the
task by delegation or by agreement with other agencies
qualifying as CLEOs.

eine.” “linden tai A ti. Wet Sen eS at a6 De DBO Pt ON BANE

a |

3la

In view of our duty to construe statutes so as to avoid
raising serious constitutional problems, and the text and
legislative history of the Act, we [*43] interpret the Act as
imposing a minimal, as opposed to an onerous, burden on
CLEOs. If a CLEO engages in unreasonably burdensome
activities to determine the legality of proposed handgun
transfers, the CLEO cannot claim that the statute demands it.
Congress has tailored the Brady Act to require only a
minimai effort, one no more oppressive than the
requirements upheld in FERC. Such effort does not
constitute a hardship of constitutional proportions.

Similarly, the two other relevant requirements of the Brady
Act -- destruction of records and notification of certain
transferees of the reasons for denying their applications --
also do not constitute impermissibly burdensome directives.
These requirements are dwarfed by the administrative
Jearings and judicial actions mandated by PURPA. From the
standpoint of the required time, the effect on resource
allocation, and the level of difficulty, these duties are
relatively insignificant. Indeed, Sheriff Frank has not
represented to us that these post-search responsibilities are
onerous. Other courts have concluded they are not. See
Printz v. United States, 854 F. Supp. 1503, 1517 (D. Mont.
1994) (record destruction requirement is [*44] de
minimis), rev'd on other grounds sub nom. Mack, 66 F.3d at
1034; McGee v. United States, 863 F. Supp. 321, 327 (S.D.
Miss. 1994) (same).

In addition, the very circumstances that cast doubt on
whether Sheriff Frank had standing -- the willingness of
other state officials to perform the CLEO functions -- tend to
show that the Brady Act is not a significant imposition on

32a

state or local officers. If the tasks required by the Act were
impracticable or unduly onerous, the State Police might not
have been so willing to relieve local law enforcement
officials of the obligation. Nor might Sheriff Frank have
been so willing to volunteer initially to perform the CLEO
duties. Usually, of course, the issue of standing is entirely
separate from the question of the merits. But in this case, the
same facts that lead the concurring judge to find no standing
seem to us -- while indicating the presence of some burden --
to show the burden imposed on Sheriff Frank and others in
his position to be sufficiently small that our conclusion on
the merits follows almost necessarily.

In sum, the obligations imposed on CLEOs by the Brady
Act do not entrench on those powers reserved to the States
{*45] by the Tenth Amendment. The Brady Act does not
establish a structurally defective scheme like the one struck
down in New York. The effort required is minimal, and the
Act is therefore not unconstitutional by virtue of the
magnitude of the burden. Finally, it is consistent with the
principles undergirding our federal system, and with past
decisions permitting federal impositions on States. As a
consequence, we declare the challenged provisions of the
Brady Act constitutional.

Ili Due Process

We turn now to the remaining issues and dispose of them as
briefly as possible. Plaintiff urged the district court, in
support of his motion for a preliminary injunction, to rule
that the Act's background check requirement is
unconstitutionally vague. This argument depended on the
applicability of the Brady Act's criminal penalty provision to
CLEOs. See Frank, 860 F. Supp. at 1034. The district court

33a

held instead that Sheriff Frank lacked standing with respect
to this Fifth Amendment claim because the Department of
Justice's Office of Legal Counsel stated that the penalty
provisions do not apply to CLEOs. The trial court ruled that
Sheriff Frank was in no danger of being prosecuted [*46]
and had therefore failed to demonstrate an injury. See id. at
1036.

On appeal, plaintiff again challenges @ 922(s)(2) as
unconstitutionally vague. He does this by identifying
vagueness as an issue and incorporating arguments made in a
memorandum in support of his motion for a preliminary
injunction. No other reference to this issue or the Brady Act's
criminal penalty provision is found in plaintiff's main brief,
though he tersely contends in his reply brief that the
"reasonable effort" requirement of @ 922(s)(2) is vague
because it requires subjective interpretation by CLEOs.

A. Justiciability

The Fifth Amendment question does not present a justiciable
controversy. Our analysis is substantially similar to that of
the district court. Ripeness, standing, and related doctrines
“relate in part, and in different though overlapping ways, to
an idea, which is more than an intuition but less than a
rigorous and explicit theory, about the constitutional and
prudential limits to the powers of an unelected,
unrepresentative judiciary in our kind of government." Allen
v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct.
3315 (1984) (quoting Vander Jagt v. O'Neill, 226 U.S. App.
D.C. 14, 699 F.2d 1166, 1179 (D.C. Cir. [*47] 1983)
(Bork, J., concurring), cert. denied, 464 U.S. 823, 78 L. Ed.
2d 98, 104 S. Ct. 91 (1983)).

34a

Our sensitivity to these concerns is particularly acute when
a litigant invokes the power of judicial review, a power at
once justified and limited by our obligation to decide cases.
See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60
(1803). As a result, a litigant challenging the constitutionality
of a statute must be subject to a "credible threat of
prosecution,” although actual charges need not have been
filed. See Babbitt v. United Farm Workers Nat'l Union, 442
U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979).
Further, in analyzing ripeness, we must "evaluate both the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration." Abbott
Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d
681, 87 S. Ct. 1507 (1967).

It is inappropriate for us to address cross-appellant's
vagueness claim, first, because there is no "credible threat"
of criminal charges. The government, earlier in the litigation,
relied on an Office of Legal Counsel memorandum
concluding that CLEOs are not subject to criminal liability
under the Brady Act as evidence of a formal position on the
matter. Plaintiff asserts that since the memorandum [*48]
was not issued by the Attorney General or formally
published, it therefore represents but an informal opinion.

Even assuming that, there still remains no substantial threat
of prosecution. The record does not reflect that any CLEO
has been prosecuted or threatened with prosecution under the
Brady Act. In addition, the Office of Legal Counsel's
memorandum, however informal, has been proffered on
numerous occasions as the government's position, suggesting
that criminal charges against CLEOs are exceedingly
unlikely. That memorandum cites a variety of compelling
reasons that such prosecutions would be futile, further

35a

supporting the proposition that charges are not imminent. In
light of this, plaintiff cannot be said to have a "realistic fear
of prosecution.” Poe v. Ullman, 367 U.S. 497, 508, 6 L. Ed.
2d 989, 81 S. Ct. 1752 (1961). Plaintiff's failure to preserve
the issue for appellate review, explained below, lends
support to this conclusion.

Sheriff Frank also declared, in his reply brief, that further
delay would serve no purpose because the vagueness issue is
primarily one of law, and that the question should be settled
for the sake of the many officials who may qualify as
CLEOs. We disagree. Although additional [*49] facts may
not be necessary, plaintiff's failure to advance a substantive
legal argument leads us to believe the issue unfit for decision
now. See Abbott Laboratories, 387 U.S. at 149. Finally,
declining to reach the issue does not work a hardship on
either. party to this suit. The vagueness question is therefore
not justiciable.

B. Failure to Raise the Question on Appeal

Apart from ripeness concerns, we would not decide the
vagueness issue because it was not adequately raised by
plaintiff. Rule 28(a) of the Federal Rules of Appellate
Procedure requires that appellants’ briefs include seven
specific items: (1) tables of contents and authorities, (2)
statement of jurisdiction, (3) statement of issues, (4)
statement of the case, (5) summary of argument, (6)
argument, and (7) conclusion. The argument section must
include "the contentions of the appellant on the issues
presented, and the reasons therefor, with citations to the
authorities, statutes, and parts of the record relied on.” See
Fed. R. App. P. 28(a)(6). In a case in which a cross-appeal is
filed, the appellee's brief must conform to the rules

36a

governing appellants’ briefs except that a statement of the
case is [*50] not mandatory. See Fed. R. App. P. 28(h).
With respect to his Fifth Amendment claim, plaintiff -- an
appellee and cross-appellant -- did not comply with Rule 28.
Although he mentioned the Fifth Amendment claim in the
"issues" section and attempted to present it to us by referring
to his arguments to the district court, he failed to present an
argument or a "conclusion stating the precise relief sought"
with respect to it. Fed. R. App. P. 28(a)(6).

In United States v. Restrepo, 986 F.2d 1462 (2d Cir.), cert.
denied, 114 S. Ct. 130 (1993), appellant's argument that the
district court failed to observe the maximum sentence was
initially presented only in a footnote, and it was therefore
inadequately raised for appellate review. Id. at 1463; Hunter
v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir.
1986) (same rule). Issues not sufficiently argued are in
general deemed waived and will not be considered on appeal.
See United States v. Maniktala, 934 F.2d 25, 27 (2d Cir.
1991); Travitz v. Northeast Dep't ILGWU Health & Welfare
Fund, 13 F.3d 704, 711 (3d Cir.), cert. denied, 128 L. Ed. 2d
888, 114 S. Ct. 2165 (1994); Kost v. Kozakiewicz, 1 F.3d
176, 182 (3d Cir. 1993). [*51]

Sheriff Frank concededly did more than the appellant in
Restrepo: he referred to another document filed in the
litigation, stated the issue, and presented a short argument in
his reply brief. However, none of these additional factors
leads to a different outcome. Merely incorporating an
argument made to the district court does not preserve a
question for appellate review. See Cray Communications,
Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n.6
(4th Cir. 1994) ("Novatel[] used . . . a practice that has been
consistently and roundly condemned by the Courts of

37a

Appeals: the appellant's briefs merely adopted by reference
the memoranda that it had previously filed in the district
court.") (citing 16 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure @ 3974,
at 733 & 742 n.27.7 (2d ed. Supp. 1994)), cert. denied, 131
L. Ed. 2d 135, 115 S. Ct. 1254 (1995); Pignons S.A. de
Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983).
In addition, simply stating an issue does not constitute
compliance with Rule 28(a): an appellant or cross-appellant
must state the issue and advance an argument. See Weaver v.
Puckett, 896 F.2d 126, 128 [*52] (Sth Cir.), cert. denied,
498 U.S. 966, 112 L. Ed. 2d 411, 111 S. Ct. 427 (1990);
Brown v. Trustees of Boston Univ., 891 F.2d 337, 352 (lst
Cir. 1989), cert. denied, 496 U.S. 937, 110 L. Ed. 2d 664,
110 S. Ct. 3217 (1990). Further, a cross-appellant generally
cannot resurrect an argument omitted in its main brief by
raising it for the first time in a reply brief. See Knipe v.
Skinner, 999 F.2d 708, 711 (2d Cir. 1993).

We recognize that a litigant's failure to comply with Rule
28 does not automatically preclude us from considering an
issue. Just as it is within our discretion to decide certain legal
questions sua sponte, e.g., Lambert v. Genesee Hosp., 10
F.3d 46, 56 (2d Cir. 1993) (failure to state a claim), cert.
denied, 128 L. Ed. 2d 339, 114 S. Ct. 1612 (1994), we may
overlook a litigant's failure properly to present an issue on
appeal in unusual circumstances, one being where manifest
injustice would otherwise result. Fed. R. App. P. 2 ("In the
interest of expediting decision, or for other good cause
shown, a court of appeals may . . . suspend the requirements
or provisions of any of these rules in a particular case"); see,
e.g., United States v. Babwah, 972 F.2d 30, 35 (2d Cir.
1992); United States v. Loya, 807 F.2d 1483, 1487 [*53]
(9th Cir. 1987); United States v. Anderson, 584 F.2d 849,

38a
853 (6th Cir. 1978).

We decline in the instant case to exercise our discretion
and disregard the general rule. Sheriff Frank did not attempt
to explain omitting the Fifth Amendment argument from his
main brief. Nor did he advance the vagueness contention at
oral argument. If, as his reply brief asserts, he is threatened
with prosecution under the Act's criminal provisions, it might
be expected that he would mention such at oral argument.
Indeed, the same factors that lead us to conclude that the
Fifth Amendment question would not be justiciable even if it
had been raised, as explained above, strongly suggest that
plaintiff will not suffer injustice -- manifest or otherwise --
from our decision not to address the merits of his due process
claim.

Moreover, because of the lack of a serious controversy on
the Fifth Amendment question, we need not address whether
overlooking a violation of Rule 28 would be warranted in
other cases involving, for example, "important . . . questions
of first impression concerning statutory interpretation."
United Transp. Umon v. Dole, 797 F.2d 823, 827 (10th Cir.
1986). Nor do [*54] we address the suggestion in NLRB v.
Semco Printing Ctr., Inc., 721 F.2d 886, 893 & n.4 (2d Cir.
1983), that review is permissible in administrative
enforcement proceedings when an argument is not advanced
or is merely referenced in a footnote. We simply hold that we
need not reach the merits in this case, because the
cross-appellant has not properly preserved the issue.

CONCLUSION

Because of our ruling that the Brady Act's imposition on
CLEOs is constitutional, we need not decide whether the

39a

background check provision is severable from the remainder
of the Act. Insofar as the judgment of the district court ruled
that Sheriff Frank has standing to challenge the Brady Act on
Tenth Amendment grounds, it is affirmed; insofar as it ruled
that the interim background check requirement of the Brady
Act violates the Tenth Amendment, it is reversed and that
portion of the Brady Act is found constitutional; and, finally,
insofar as it declined to reach the merits of cross-appellant's
Fifth Amendment claim, it is affirmed.

Affirmed, in part, and reversed, in part.
CONCURBY: MINER
CONCUR: MINER, Circuit Judge, concurring in the result:

I am of the opinion that Sheriff Frank lacked standing
[*55] to maintain this action and therefore see no need to
pass on the constitutional claims that he advances.
Accordingly, I agree with my colleagues only to the extent
that judgment should be entered for appellant.

There are three requirements that must be met to establish a
case or controversy calling for the exercise of federal judicial
power under Article III of the Constitution: first, the plaintiff
must have suffered an injury in fact--an injury that is actual
or imminent, not hypothetical or conjectural, is concrete and
is seen to "affect the plaintiff in a personal and individual
way," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 &
n.1, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992); second, the
injury must be fairly traceable to the defendant's challenged
action and not caused by the independent action of a third
party, id. at 560; and third, it must be likely, not just
possible, that the injury will be redressed by a favorable

court ruling, id. at 561.

I cannot perceive how the Brady Act has caused Sheriff
Frank to suffer any injury in fact within the meaning of
Lujan. My colleagues properly decide that a Chief Law
Enforcement Officer ("“CLEO") can be a state official as well
as a local official [*56] within the intendment of the Brady
Act. The Act does not appear to impose CLEO duties upon
anyone unwilling to undertake them. A locality may have
any number of officers who fit the definition of
CLEO--Chief of Police, Sheriff or State Commissioner of
Public Safety. Sheriff Frank voluntarily took on the CLEO
function, apparently for the sole purpose of challenging the
Brady Act. His instigation of this lawsuit impelled
Commissioner Watson of the Vermont Department of Public
Safety to conclude that Sheriff Frank really did not desire to
perform the duties of a CLEO. Accordingly, the
Commissioner requested the Bureau of Alcohol, Tobacco
and Firearms to change the CLEO designation in Orange
County, where Sheriff Frank holds forth. The Bureau has
agreed to treat Lieutenant Contois of the Vermont State
Police as the CLEO for Orange County because of the
Sheriff's apparent unwillingness to act. What actual injury
has the Sheriff suffered? How has he been affected in a
personal and individual way?

My colleagues say that "administrative burdens” constitute
the concrete injury contemplated by the standing
requirement. The administrative burdens, they say, consist of
working together with [*57] state and local officials to
determine which agency would perform the CLEO function.
Because Sheriff Frank is responsible for participating in this
decision-making process, he must "undertake an analysis" of
his own procedures and capabilities, supposedly an onerous

SS we witch

4la

administrative burden. It just does not seem to me that a
simple decision to pass up the CLEO job constitutes any sort
of a "burden," let alone one that amounts to an injury in fact.

There is yet another "burden," according to my colleagues,
that justifies a finding of the requisite actual or imminent
injury--that the state police may at some time in the future
decide to discontinue CLEO duties in Orange County and
Sheriff Frank might then have to assume those duties.
Accordingly, it is said, the Sheriff must so structure his
operations as to be ready for this eventuality. However, there
is no suggestion whatsoever that the state police have any
intention of giving up the CLEO function in Orange County.
It certainly cannot be said that any such action is "imminent."
Also, there is nothing to say that some other law enforcement
agency will not take up the duties in the event the state police
gives them up. I» any event, [*58] it is sheer speculation
to say that the duties might someday be imposed on Sheriff
Frank. The administrative burdens cited constitute a very
thin reed upon which to rest a finding of injury sufficient to
confer standing.

I very much disagree with the proposition that Friends of
the Earth v. Carey, 552 F.2d 25 (2d Cir.), cert. denied, 434
U.S. 902, 54 L. Ed. 2d 188, 98 S. Ct. 296 (1977), supports
Sheriff Frank's standing claim. In Friends, we were presented
with the question of whether the City of New York (the
"City") had standing to claim that enforcement of a pollution
control plan, promulgated by the State of New York pursuant
to the Federal Clean Air Act, represented an invasion of the
City's sovereignty in violation of the Tenth: Amendment. Id.
at 33. The pollution control plan at issue in Frieads was
promulgated in accordance with a federal statutory scheme

42a

that provided states with the choice of promulgating their
own pollution control plans or submitting to a plan
promulgated by the Environmental Protection Agency. Id. at
30. New York State, with the assistance of the City,
promulgated a plan (the "Plan") to meet the federal air
quality standards in the City, and the Plan became binding
[*59] upon and enforceable against both the state and the

City.

The City, a defendant in the action that sought to compel it
to enforce the Plan, claimed that "a judgment directing it to
enforce the Plan would interfere with its governmental
interests in allocating funds, police resources and in making
policy decisions." Id. at 33. We held that "the City's claim
satisfies traditional notions of standing since the City is
allegedly threatened with injury to its governmental interests
and is within the class of entities which the Supreme Court
has held to be protected from incursions of federal power."
Id.

The City in Friends suffered a far more concrete and
particularized injury than Sheriff Frank presents in the
instant case. First of all, while the City in Friends was the
subject of an action seeking to compel it to enforce the Plan,
Sheriff Frank has not been compelled to comply with the
requirements of the Brady Act. Indeed, the sheriff
volunteered to assume CLEO duties and was relieved of his
responsibilities immediately after he objected to performing
those responsibilities. Moreover, Sheriff Frank cannot
demonstrate that it is even remotely possible that he would

be required [*60] to perform the CLEO duties in the future.

Therefore, his claim of injury is merely "hypothetical" and
"conjectural."
In Friends, the City sustained a severe invasion of a

43a

legally protected interest. The City there was faced with the
possibility of being compelled to enforce a plan to meet
federal air quality standards for carbon monoxide,
hydrocarbons, oxidants, and nitrogen dioxide. Here, Sheriff
Frank was required to work with other law enforcement
officials to decide who would assume the CLEO duties. This
really cannot be compared with the burden of complying
with federal air pollution standards in the New York City
metropolitan area. Sheriff Frank cannot point to any concrete
injury. Accordingly, he has no standing to put forward his
constitutional challenges to the Brady Act.

860 F. Supp. 1030

Sheriff Samuel Frank, Plaintiff, v. United States of America,
Defendant.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF VERMONT
August 2, 1994, Decided
August 2, 1994, Filed

COUNSEL: [**1i] For Plaintiff: Andrea L. Gallitano, Esq.,
Otterman & Allen, Barre, VT.

For Defendant: Thomas D. Anderson, Esq., Assistant U.S.
Attorney, District of Vermont, Burlington, VT and Michael
Sitcov, Esq., U.S. Department of Justice, Washington, DC.

44a

JUDGES: Parker
OPINIONBY: FRED I. PARKER
OPINION: [*1031] FINDINGS OF FACT, OPINION
AND ORDER

This matter came before the Court on plaintiff's Motions
for a Temporary Restraining Order and/or Preliminary
Injunction. The Court held a hearing on the Motion for a
Preliminary Injunction on June 2, 1994. At that time the
parties agreed to consolidate the hearing with a trial on the
merits pursuant to Fed. R. Civ. P. 65(a)(2). After considering
all testimony, affidavits and arguments submitted by the
parties, nl the Court enters the following findings of fact,
opinion, and order on the merits of this case.

nl The Court also considered the amicus curiae brief
submitted by Handgun Control, Inc., Center to prevent
Handgun Violence, Major Cities Chiefs of Police,
International Association of Chiefs of Police, National
Association of Police Organizations, Fraternal Order of
Police, Police Foundation, Federal Law Enforcement
Officers Association, Police Executive Research Forum,
National Troopers Coalition, and National Organization of
Black Law Enforcement Executives. Further references to
this brief will be designated "Amicus Brief, p. ".

- [**2]

Findings of Fact
1. Sheriff Samuel Frank is the elected Sheriff of Orange
County, Vermont, a jurisdiction of 992 square mik.. with a
population of approximately 26,000 persons.
2. The Ora: ge County Sheriff's Department consists of two
full time law enforcement officers: Sheriff Frank and Deputy
Dennis McClure.

‘
L
:

45a

3. The duties of the Sheriff are defined by 24 V.S.A. Chapter
5, subchapter 5.

[*1032] 4. Ona typical day, the Sheriff's office will have
the Sheriff and one full time deputy on duty.

5. The Sheriff's Department provides court security in the
county, transports state prisoners, transports some mental
health patients, serves process and writs, investigates crime,
and patrols the jurisdiction.

6. Funding for the Sheriff's Department comes from three
sources: the State of Vermont, Orange County, and private
security contracts.

7. The Vermont State Police respond to criminal activity in
Orange County, enforce motor vehicle laws, and patrol the
county. The Vermont State Police do not provide court
security, prisoner transport, mental health transport, or
service of process in Orange County.

8. On January 21, 1994 the Bureau of Alcohol, Tobacco, and
Firearms (ATF) sent an [**3] "Open Letter to State and
Local Law Enforcement Officials" on the topic of the
so-called Brady Bill. n2 In this letter ATF discussed the
definition of chief law enforcement officer ("“CLEO"), which
the Brady Bill defines as "the chief of police, the sheriff, or
an equivalent officer or the designee of such individual," and
stated its opinion that the definition of CLEO was broad
enough, in some cases, to apply to more than one official in a
given jurisdiction. The letter also expressed ATF's opinion
that, in jurisdictions where more than one official satisfied
the definition of CLEO, law enforcement officials could
agree on having only one serve as CLEO.

46a

9. On January 31, 1994 a meeting of all interested law
enforcement agencies was held at Norwich University to
discuss the implementation of the Brady Act in Vermont. At
this meeting, representatives of local law enforcement
agencies, the Vermont State Police, and the Bureau of
Alcohol, Tobacco and Firearms (ATF) [**4] were present.
10. At the meeting, the obligations of CLEOs under the
Brady Act was discussed.
11. Also at the meeting, James Walton, the Commissioner of
Public Safety in Vermont, stated that the Vermont State
Police was willing to function as the CLEO for Brady Act
purposes, for any jurisdiction in which the sheriff or local
police department declined to accept that responsibility.
12. Sheriff Frank stated his willingness to serve as CLEO for
Orange County at the meeting, believing that the he was
required to do so because he was the Sheriff or Orange
County and thus directly implicated by the Act.
!~ In his capacity as CLEO, Sheriff Frank received notices
of proposed firearm transactions from federally licensed
dealers, and either Sheriff Frank or his Deputy conducted
some type of background check, ranging in time from 15
minutes to six hours, for each proposed transaction to
attempt to determine whether it would violate the law.
14. Prior to the enactment of the Brady Act, Sheriff Frank
would sometimes conduct criminal record checks in the
normal course of his duties. The Sheriff's Department
workload with respect to background checks approximately
doubled after the Brady [**5] Act became effective.
15. On May 10, 1994 Sheriff Frank filed this case, seeking to
have enforcement of the Brady Act enjoined and declared
unconstitutional as violative of Article I, sec. 8, as well as the
Fifth and Tenth Amendments of the Constitution.
16. Upon learning of the instant challenge to the Brady Act,

47a

Commissioner Walton wrote to Sheriff Frank and informed
him he was requesting ATF to substitute Lt. George Contois
of the Vermont State Police for Sheriff Frank as the CLEO
for Orange County because Commissioner Walton believed
that Sheriff Frank's conduct in challenging the Brady Act's
constitutionality was evidence of his desire not to serve as
CLEO.

17. After receiving Commissioner Walton's letter, Sheriff
Frank has continued to perform background checks when he
is notified of a proposed transfer by federal firearms dealers.
18. Sheriff Frank has not received notice from any party
other than Commissioner (*1033] Walton regarding his
status as CLEO for Orange County.

Conclusions of Law, Opinion and Order
To properly analyze Sheriff Frank's challenge to the Brady
Act, it is necessary to review both the statutory framework of
the Gun Control Act and the provisions of the [**6] Brady
Act itself prior to any discussion of Sheriff Frank's
complaint.
I. Statutory Framework

The so-called Brady Act amends the Gun Control Act of
1968, 18 U.S.C. @ 921 et. seq., which created a federal
regulatory scheme governing the manufacture and
distribution of firearms by private persons. One feature of the
Gun Control Act is a requirement that a federal license be
obtained to engage in the business of manufacturing,
importing, or dealing in firearms in interstate or foreign
commerce. 18 U.S.C. @ 923(a). Licensees are required to
maintain records of their transactions and to allow the
Bureau of Alcohol, Tobacco, and Firearms to inspect the
records. 18 U.S.C. @ 923(g). Licensees are also prohibited
from transferring firearms or ammunition to any person the
licensee knows, or has reasonable cause to believe: is under

48a

indictment for, or has been convicted of a crime punishable
by imprisonment for a term exceeding one year; is a fugitive
from justice; is an unlawful user of certain illegal substances;
has been adjudicated a mental defective; is an illegal alien;
has [**7] been dishonorably discharged from the armed
forces; or has renounced his or her U.S. citizenship. 18
U.S.C. @ 922(d)(1)-(7).

Prior to the passage of the Brady Act, federal firearms
dealers were required to have customers fill out ATF form
4473, on which the customer certified that he or she was not
prohibited by law from receiving or possessing a firearm. 27
C.F.R. @ 178.124. This self-certification was the only
method by which a federal firearms dealer could determine
whether or not a transfer was prohibited.

II. The Brady Act

The interim provisions n3 of the Brady Act alter the prior
scheme by imposing on the licensed dealers an obligation,
under certain circumstances, n4 to have the prospective
transferee fill out an ATF Form 5000.35. 59 Fed. Reg. 7110,
7112, Feb 14, 1994. On this form the transferee must provide
a statement that includes his or her name, date of birth, and
address as they appear on a designated piece of picture
identification. 18 U.S.C. @ 922(s)(3)(A). The transferee
must also state under oath that he or she is not barred from
purchasing or receiving a firearm [**8] in interstate or
foreign commerce. 18 U.S.C. @ 922(s)(3)(B). The licensed
dealer must then transmit the contents of the form to the
Chief Law Enforcement Officer ("CLEO") of the place of
residence of the prospective purchaser within one day of its
completion and send a copy of the form to that official. 18
U.S.C. @ 922(s)(1(A)(i)(IID-(IV).

n3 The challenged provisions of the law all relate to its

|
|
i
|

49a

interim provisions, which involve local law enforcement in
the determination of whether a transfer of a firearm is
prohibited. The Brady Amendment provides for the eventual
use of a national instant background check system that
licensed dealers can contact by phone or otherwise to
determine whether a transfer is prohibited. 18 U.S.C. @
922(t)(1). The involvement of local law enforcement is
contemplated under the Amendment only until such time as
the national system is operational, but not later than 1999.
Pub. L. 103-159, Sec. 103(b). Thus it is the interim
provisions and not the permanent provisions of the law that
are challenged by Sheriff Frank. [**9]

n4 No waiting period or background check is required
under certain circumstances. See 18 U.S.C. @

922(s)(1)(B)-(F).

Upon receipt of the form, the Brady Act dictates that the
CLEO "shall make a reasonable effort to ascertain within 5
business days whether receipt or possession [of a handgun]
would be in violation of the law, including research in
whatever State and local recordkeeping systems are available
and in a national system designated by the Attorney
General." 18 U.S.C. @ 922(s)(2). The federally licensed
dealer is prohibited from transferring the firearm until he or
she is advised by the CLEO that the transfer would not be
illegal, or until 5 days have elapsed since the CLEO received
notice of the proposed [*1034] transfer, whichever occurs
first. 18 U.S.C. @ 922(s)(1)(A).

In the event that it is determined that the proposed transfer
does not violate the law, the CLEO is also required to
destroy any records received or generated due to the notice of
proposed transfer within twenty days [**10] after the

50a

completion of the pretransfer application. 18 U.S.C. @ 922
(s)(6)(B)(i). A purchaser who is determined ineligible to
receive a handgun based on the CLEO's investigation may,
upon request, obtain a written explanation from the CLEO
explaining the reasons for denial. 18 U.S.C. @ 922(s)(6)(C).
The Brady Act also contains a penalty provision, 18 U.S.C.
@ 924(a)(5), which states: "Whoever knowingly violates
subsection (s) or (t) of section 922 shall be fined not more
than $ 1,000, imprisoned for not more than | year, or both."

III. The Complaint

Sheriff Frank's complaint seeks declaratory and injunctive
relief concerning enforcement of the Brady Act. He contends
that certain provisions of 18 U.S.C. @ 922(s), specifically @
922(s)(2) (requiring CLEOs to make a reasonable effort to
ascertain whether a proposed transfer would violate the law),
@ 922(s)(6)(B) (requiring CLEOs to destroy records relating
to background checks), and @ 922(s)(6)(C) (requiring
CLEOs to provide written reasons to those who are
determined ineligible for the transfer [**11] of a handgun)
exceed Congressional authority under Article I, Section 8 of
the Constitution and the Tenth Amendment. Sheriff Frank
also interprets the penalty provision of the Brady Act, 18
U.S.C. @ 924(a)(5) as providing for criminal penalties
against local law enforcement authorities who do not comply
with its provisions. In this regard, he raises a Fifth
Amendment due process argument, claiming that the
provisions of the Brady Act are unconstitutionally vague.

IV. Discussion
A. Can Sheriff Frank Challenge the Brady Act?

The Government asserts that the Court should not reach the
merits of Sheriff Frank's challenge to the Brady Act because
he lacks standing. This argument takes two forms. First, the

Sla

Government argues that Sheriff Frank is not the real party in
interest and is not authorized to bring suit in his official
capacity under Vermont law. Second, the Government argues
that assuming he has the capacity to sue and is a real party in
interest, Sheriff Frank lacks standing because he volunteered
to be the CLEO for Orange County and has therefore
suffered no injury traceable to the Brady Act.

1. Capacity and Real Party in Interest Status [**12]

The Government argues that "under Vermont law, plaintiff
is a county officer, 24 V.S.A. @ 290, but lacks authority to
initiate this litigation in his official capacity. Instead,
Vermont law expressly confers the authority to sue or be
sued on counties themselves. Id. @ 136." Thus the
Government's position is that Sheriff Frank is really asserting
the legal rights of Orange County, which he is not authorized
to do. Fed. R. Civ. P. 17(a) and (b).

However, the matter is not as simple as the Government
contends. The office of sheriff is created by Chapter II of the
Vermont Constitution, sections 43, 50, and 53. Sheriffs are
elected by the freemen of their districts under Chapter II @
50 of the Vermont Constitution, and the county as such has
no part in the selection of a sheriff. Nor can the county
remove a sheriff from office, which, aside from the election
process, can be done only through an impeachment process
before the Vermont State Legislature under Chapter II @ 57
of the Vermont Constitution. The state, not the county, sets
the salary of the sheriff. 32 V.S.A. @ 1182.

Moreover, the duties of the sheriff are set by state statute,
not by the county. The executive officers of [**13] the
county are assistant judges, 24 V.S.A. @ 131 et seq. who are
given no authority to direct the sheriff's duties. Thus Sheriff
Frank, though a statutory employee of the county, 24 V.S.A.
@ 290, functions independently of the county in many
important respects. Viewed in this light, it is unclear that the

52a

county would be the real [*1035] party at interest in this
case. The Brady Act asks nothing of the county qua county.
To the extent that Brady directs Sheriff Frank to undertake
duties other than those that he would do in the absence of
Brady, the county, which has no control over the sheriff's
duties in the first place, does not suffer any injury. Given this
situation, the Government's argument that 24 V.S.A. @ 136,
which states that “actions in which a county is the party in
interest shall be brought by or against the county .. ."
(emphasis added) deprives Sheriff Frank of capacity to sue is
misplaced. It is the sheriff, not the county, who is directed to
take action by the Brady Act and who must attempt to
reconcile these actions with his Vermont statutory mandates
and oath of office. The county faces no similar dilemma.

Whether or not the county could have brought this action,
[**14] itis clear to the Court that, subject to the standing
considerations that will be discussed below, Sheriff Frank
must have capacity to initiate this challenge. As noted by the
Court in McGee v. United States of America, 1994 U.S. Dist.
LEXIS 10610 *5 (S.D. Miss., June 2, 1994), a similar
challenge to the Brady Act:

It would be anomalous indeed if Congress can direct a
sheriff to take specific action; if Congress may provide that a
sheriff may be sued in civil rights actions; and if sheriffs can
be sued for deprivation of constitutional rights by inmates;
but a sheriff cannot bring a suit to declare unconstitutional an
action of Congress that directly impacts upon such sheriff,
and impacts upon no other state, county or federal official.

A determination that Sheriff Frank has capacity to bring the
action as Sheriff does not end the inquiry. The Government's
contention that Sheriff Frank lacks standing because he has
suffered no injury traceable to the Brady Act must also be
addressed.

2. Standing

53a

The Government claims that Sheriff Frank lacks standing
because he has not demonstrated that he has suffered, or is in
imminent danger of suffering, a distinct and [**15]
palpable "personal injury fairly traceable to the defendant's
allegedly unlawful conduct and likely to be redressed by the
requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L.
Ed. 2d 556, 104 S. Ct. 3315 (1984). This argument stems
from the fundamental principle that federal court jurisdiction
is limited by Article III to cases and controversies. As the
Supreme Court explained in Lujan v. Defenders of Wildlife,
119 L. Ed. 2d 351, 112 S.Ct. 2130, 2136 (1992) ". . . the core
component of standing is an essential and unchanging part of
the case-or-controversy requirement of Article III."

In Lujan, the Supteme Court discussed the requirements of
standing. Id. at 2135-37. It found that "the irreducible
constitutional minimum of standing contains three elements."
Id. at 2136. The three elements that must be shown are: (1)
an injury in fact, which is an invasion of a legally protected
interest that is concrete and particularized, actual or
imminent and not conjectural or hypothetical; (2) a causal
connection between the injury and the conduct; and (3) a
likelihood [**16] that the injury will be redressed by a
favorable decision. Id.

a. Injury in Fact

Sheriff Frank's claimed injury is that, by functioning as
CLEO, he has used some portion of his department's finite
resources completing tasks that are not part of his Vermont
statutory duties. In this case, Sheriff Frank testified and the
Court found that each background check he does on a
prospective gun purchaser takes a minimum of fifteen
minutes and sometimes up to six hours. Moreover, Sheriff
Frank argues that the Brady Act forces him to expend funds
and resources in a manner inconsistent with the scope of his

54a

duties as outlined in 24 V.S.A. ch. 5, subch. 5 and thus
compliance with Brady "places him at risk of violating his
oath of office, impeachment, and diminished re-election
potential." Plaintiff's Second Memorandum in Response, p.
11. Sheriff Frank also fears that he either faces criminal
prosecution pursuant to 18 U.S.C. @ 924 or the appearance
to his constituents that he is [*1036] not law abiding if he
does not comply with Brady.

The Government interprets Brady as requiring merely an
exercise of discretion on the part of Sheriff Frank and argues
that this [**17] “mandatory” discretionary duty is
consistent wit, Constitutional requirements. As for Sheriff
Frank's fear of criminal prosecution, the Government has
interpreted 18 U.S.C. 924(a)(5) as not providing criminal!
penalties for CLEOs. See Memorandum for Janet Reno,
Attorney General from Walter Dellinger, Office of Legal
Counsel, March 16, 1994.

With regard to Sheriff Frank's Fifth Amendment claim, I
agree that he has not shown injury because he has not been
prosecuted under the statute nor is he in any imminent
danger of being prosecuted because the Office of Legal
Cou

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1312%3A1. Public record. Not legal advice.